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2006 DIGILAW 3461 (MAD)

Dr. A. K. D. Kumar v. Balarama Raja

2006-12-13

G.RAJASURIA

body2006
Judgment :- C.R.P.NPD.Nos.435 of 2004 and 959 of 2005 are directed as against the order of the Principal District Judge, Virudhunagar at Srivilliputtur, made in I.A.No.111 of 2004 in O.S.No.7 of 1953 dated 28.07.2004, which was filed by one Balarama Raja, the Managing Trustee, Sri Rav Bahadur A.K.D.Dharma Raja Educational Trust, under Section 151 of the Code of Civil Procedure. The respondents praying the Court to appoint the first respondent A.A.Subba Raja as the Trust Manager for a period of three years. 2. A resume of facts absolutely necessary for the disposal of these Civil Revision Petitions would run thus The Trust referred to supra was founded by one Sri Rao Bahadur A.K.D.Dharmara of Rajapalayam and in connection with that a scheme decree was passed in O.S.No.7 of 1953 by the District Court, Virudhunagar District at Srivilliputtur. Clause (iii) of the scheme decree would run thus: "3. The Trustee Manager shall be nominated by the District Judge, Virudhunagar District at Srivilliputtur from among the male members of the founders family according to seniority and the right of sons 1) Sri.D.K.Raju, 2) Sri.A.K.A.Venkata Raja 3) A.K.D.Balarama Raja, 4) Sri.A.K.D.Alagar Raja 5) Sri.A.K.D.Rangasamy Raja, of the founder and the male member of the each branch to hold the office for a period of three years in rotation by turns but excluding any such member who shall be disqualified. a) if he has been convicted by a criminal court for an offence involving moral turpitude; b) if he is an undischarged insolvent and c) if he is proved to have acted to the prejudice of the trust by instituting court proceedings except for money or other claim due to him from the trust and unlawfully withheld by the trustee." 3. The five sons of the founder referred to in the scheme decree were dead. The present position of the existing descendants of the founder are as under The eldest son Sri.D.K.Rajus adopted son is the fourth respondent. Sri.A.K.D.Venkata Rajas only son Sri.A.K.D.Dharmaraja is also dead and his eldest son is the 5th respondent. Sri.A.K.D.Balraman Rajas son Sri.A.K.D.B.Gobalakrishna Raja is also dead and his only son is the petitioner. Sri.Alagar Rajas son is the first respondent. Sri.A.K.D.Rangasamy Rajas eldest son is the 6th respondent. 4. Sri.A.K.D.Venkata Rajas only son Sri.A.K.D.Dharmaraja is also dead and his eldest son is the 5th respondent. Sri.A.K.D.Balraman Rajas son Sri.A.K.D.B.Gobalakrishna Raja is also dead and his only son is the petitioner. Sri.Alagar Rajas son is the first respondent. Sri.A.K.D.Rangasamy Rajas eldest son is the 6th respondent. 4. The present petitioner was nominated as Managing Trustee by the District Judge as per the order in I.A.No.60 of 2004 dated 27.04.2001 and he was functioning ever since 04.05.2001 with the condition that his tenure of office was for three years, which expired on 03.05.2004. The petitioner before expiry date of his term of office, has filed I.A.No.111 of 2004 in O.S.No.7 of 1953 on the file of the District Court, Virudhunagar District at Srivilliputtur for the Court to nominate a new Managing Trustee as per the scheme concerned. 5. Per contra, the 5th respondent, A.K.D.Kumar through his power agent, A.K.D.Venkataramana Raja filed the counter affidavit inter alia with the averments which run thus: As per the scheme decree, the management of the trust shall be by five trustees, namely (1) Trustee Manager (Managing Trustee), (2) The District Collector (Ex-Officio), (3) Municipal Chairman (Ex-Officio), (4) A citizen of Rajapalayam to be appointed by the District Judge, from the persons nominated by the male members of the Founders family and (5) A resident of Rajapalayam co-opted by the Four other Trustees with the approval of the District Judge. The District Judge was expected to nominate the Trust Manager for a period of three years from among the male members of each branch of the founder of the trust on rotation basis. 6. The 5th respondent A.K.D.Kumar now at Los Angeles, USA, is running a nursing home there, executed a registered deed of General Power of Attorney on 06.11.1991 in favour of Venkatarama Raja, his own brother who both belonged to the second branch. Accordingly, the 5th respondent, A.K.D.Kumar through is power agent, A.K.D.Venkataramana Raja, objected for the appointment of A.A.Subba Raja as Trust Manager. 7. The first respondent A.A.Subba Raja, representing the fourth branch of the founders family, was to be in the rotation nominated as Trust Manager by the District Judge, provided he has requisite qualifications. A.A.Subba Raja forfeited his right to be appointed as Trust Manager as he acted against the interest of the Management by initiating Court Proceedings in violation of the clause 3 of the scheme decree. 8. A.A.Subba Raja forfeited his right to be appointed as Trust Manager as he acted against the interest of the Management by initiating Court Proceedings in violation of the clause 3 of the scheme decree. 8. The first respondent herein, was the Secretary of the College Committee relating to the Womens College run by the Trust up to 06.08.2003 for a period of three years and thereafter also, he was re-nominated as Secretary and such appointment as a Secretary was made by the Educational Agency which is the Trust. 9. The said Subba Raja filed a suit as against the Trust for enabling him to operate the College accounts whereas the Trust asserted that it has to operate it and the suit was decreed in favour of Subba Raja as against which first appeal was filed in A.S.No.5 of 2001 on the file of the Sub Court, Srivilliputtur. 10. The fact remains that the said A.S.No.5 of 2001 was also allowed and the original suit was dismissed and as against which A.A.Subba Raja filed the second appeal in S.A.No.504 of 2004 which is pending before this Court and is being dealt along with this Civil Revision Petition. 11. Dharmakrishna Raja, the fourth respondent in his counter would narrate the general facts relating to this matter as set out above and would further state as under: A criminal case in Cr.No.216 of 2003 is pending on the file of the learned Judicial Magistrate Court, Rajapalayam for the offence of trespass and other offences punishable under the Indian Penal Code and that also would disqualify him for being nominated as Trustee. 12. A.A.Subba Raja, the first respondent replied denying and disputing the allegations in the counter and asserted his right to the post of Managing Trustee. 13. A resume of facts absolutely necessary for the disposal of the Second appeal would run thus: The aforesaid A.A.Subba Raja was nominated as Secretary by the Educational Agency of the said Trust while so, there arose difference of opinion between A.A.Subba Raja and the then Managing Trustee of the Trust namely, Venkatarama Raja which resulted in the former filing the suit as against the latter in O.S.No.369 of 2000 on the file of the Principal District Munsif, Srivilliputtur for injunction so as to safeguard his (A.A.Subba Raja) right as a Secretary of the College Committee to operate the college accounts. The said suit was decreed as against which the appeal in A.S.No.5 of 2001 was filed before the Sub Court, Srivilliputtur which resulted in the trial Courts judgment being reversed and the original suit was dismissed and as against the judgment and decree of the first appellate Court, this second appeal has come to be filed on the main ground that quite as against section 12 and the rule 9(1) and 9(6) of the Tamil Nadu Private Colleges (Regulation) Act, 1976, the first appellate Court allowed the appeal and dismissed the original suit. 14. At the time of entertaining this second appeal the following substantial questions of law were framed: (i) Whether the lower appellate Court is right in reversing the well considered judgment of the trial court without considering the Specific Power and function vested with the Secretary of the College Committee for maintenance of proper and accurate accounts and administration of College funds as provided under Section 12 read with rule 9(b) of the Tamil Nadu Private Colleges (Regulation) Act, 1976 and above rule made therein? (ii) Whether the lower appellate Court is right in construing the functions of the Educational Agency under Section 14, 26, 35 and 36 of the Tamil Nadu Private Colleges (Regulation) Act, 1976, will override the Specific Power and function given to the secretary of the college committee under Section 12 read with Rule 9(6) of the Tamil Nadu Private Colleges (Regulation) Act, 1976 and above rule made therein?" 15. Relating to the Civil Revision Petitions, the Points for Consideration would run thus: (i) Whether A.A.Subba Raja (R1) suffers from the following disqualifications for being appointed as Managing Trustee: a) Whether he has been convicted by a criminal court for an offence involving moral turpitude; b) Whether he is proved to have acted to the prejudice of the trust by instituting court proceedings except for money or other claim due to him from the trust and unlawfully withheld by the trustee? [emphasis supplied] 16. Right at the outset, the ground relating to moral turpitude on which the nomination of A.A.Subba Raja is sought to be impugned could be considered and held as one which is baseless for the reason to be stated infra. The term moral turpitude is having a special connotation of its own. [emphasis supplied] 16. Right at the outset, the ground relating to moral turpitude on which the nomination of A.A.Subba Raja is sought to be impugned could be considered and held as one which is baseless for the reason to be stated infra. The term moral turpitude is having a special connotation of its own. The various law lexicons / dictionaries would generally define as under: "Anything done contrary to justice, honesty, principle, or good morals; an act of baseness, vileness, or depravity in the private and social duties which a main owes to his fellow man or to society in general, contrary to the accepted and customary rule of right and duty between man and man." The test which should ordinarily be applied for judging whether a certain offences does or does not involve moral turpitude appear to be (1) whether teh act leading to a conviction was such as could shock moral conscience of society in general, (2) whether the motive which led to the act was a base one and (3) whether on account of the act having been committed the perpetrator could be considered to be of a depraved character or a person who was to be looked down upon by the society. 17. The District Court, in its judgment at paragraph No.8, clearly held that even though the fourth respondent alleged that Subba Raja committed the offences of criminal trespass, the fourth respondent has not proved that Subba Raja was convicted for any offences involving Moral Turpitude. Ex.A.25 refers to the certified copy of the first information report registered by the police in Cr.No.215 of 2003 of Rajapalayam South Police Station on 25.03.2003. There is nothing to show first of all whether he was convicted for any offence at all and also for any offence involving moral turpitude. Not even the result of the criminal case has been highlighted. Hence, in such a case, the District Judge was right in discarding and rejecting the objection raised based on moral turpitude. 18. The next ground on which the appointment of A.A.Subba Raja was attacked, was that he instituted the suit against the Trust. 19. Not even the result of the criminal case has been highlighted. Hence, in such a case, the District Judge was right in discarding and rejecting the objection raised based on moral turpitude. 18. The next ground on which the appointment of A.A.Subba Raja was attacked, was that he instituted the suit against the Trust. 19. The learned Counsel for Subba Raja would highlight that the suit of the nature filed by Subba Raja as against Venkatarama Raja by no stretch of imagination, could be termed as a suit against the Trust; the said Venkatarama Raja taking advantage of his position as Managing Trustee of the Trust unwarrantly interfered with the functions of Subba Raja who was the Secretary of the College Committee at the relevant point of time and that such illegal interference by Venkatarama Raja into the affairs of Subba Raja as Secretary alone propelled and impelled, actuated and accentuated and in fact, drove A.A.Subba Raja to the extent of filing the suit. 20. Per contra, the learned Counsel for A.K.D.Kumar, represented by Venkatarama Raja would advance the argument unconvincingly to the effect that Subba Raja by filing the suit violated the clause 3 of the scheme decree which postulates and mandates the filing of the suit as against the Trust would be a disqualification to be a Managing Trustee. 21. It is just and necessary to recollect the sub-clause 3 of the Scheme decree which is to the effect that if at all any court proceeding is instituted to the prejudice of the Trust, such institutor would suffer from disqualification from being nominated as Trust Manager. It has become therefore just and necessary to adjudge whether such institution of the suit by Subba Raja would tantamount to Subba Raja having acted to the prejudice of the Trust and thereby invited disqualification. In this peculiar situation, the disposal of the second appeal is having direct bearing/concerning the disposal of the Civil Revision Petitions. 22. A plain reading of the aforesaid provisions of law, to wit, Section 12 of the Tamil Nadu Private Colleges Regulations Act, 1976, would demonstrate that it is the bounden duty of the Secretary to deal with the accounts which obviously and incontrovertibly includes the power to operate the bank account relating to the College education. 22. A plain reading of the aforesaid provisions of law, to wit, Section 12 of the Tamil Nadu Private Colleges Regulations Act, 1976, would demonstrate that it is the bounden duty of the Secretary to deal with the accounts which obviously and incontrovertibly includes the power to operate the bank account relating to the College education. However, the Revision Petitioner would contend that rule 9(6) militates as against the relevant sections of the Tamil Nadu Private Colleges (Regulations) Act, 1976. It is therefore just and necessary to scrutinize the relevant provisions of law. 23. A conjoint reading of the Act and the rules demonstrates that the rule 9 empowers the Secretary of the College to deal with the accounts including the operation of Bank accounts relating to College funds and it is against the provisions of the Act. As such,it is crystal clear that Venkatarama Raja unnecessarily and unduly interfered with the smooth functioning of Subba Raja as Secretary in operating the Bank accounts. In such view of the matter by no stretch of imagination, the said suit could be termed as a vexatious suit or a court proceeding instituted to the prejudice of the Trust. It is common knowledge that the sight to approach the civil Court cannot be prohibited by anyone. Even if there is any such stipulation, it would be void. 24. Section 23 of the Indian Contract Act, could be fruitfully referred to as hereunder: "23. What considerations and objects are lawful, and what not:- The consideration or object of an agreement is lawful, unless- it is forbidden by law; or is of such a nature that, if permitted, it would defeat the provisions of any law; or is fraudulent: or involves or implies injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy." 25. Trait, the proposition of law, is that such restrictive clause in a Contract or Trust deed or in any memorandum of agreement restraining any person to approach the Court would be void ab initio. 26. Here, very cautiously clause 3(c) has been incorporated by the framers of the scheme decree which contemplates court proceedings "to the prejudice of the Trust" alone was prohibited. 26. Here, very cautiously clause 3(c) has been incorporated by the framers of the scheme decree which contemplates court proceedings "to the prejudice of the Trust" alone was prohibited. As has been already highlighted above, the suit was strictly in accordance with law for enforcing his right as against the unjustified restriction tried to be imposed by Venkatarama Raja, the then Managing Trustee of the Trust. In such a case, absolutely no disqualification could be imputed on A.A.Subba Raja 27. To say the least, the perusal of the decision of first appellate Court would show that the Court completely misdirected itself in understanding both the Act and the Rules. The first appellate Court in paragraph Nos.21 and 22 simply assumed as though the said Rule 9 militated as against the provisions of the Act empowering the Educational Agency that is the Trust to operate Bank account. The Rule 9 concerned has not been challenged by filing any writ and it was not quashed. Even though the Act would generally state that the Educational Agency is capable of owning the properties yet the rule candidly mandates the Secretary to maintain the accounts of the College and not the entire accounts of the Trust. Rules framed under the Act are to give effect to the Act and the details are in the rules. This distinction has failed to be noted by the first appellate Court and also by the sponsors of the theory of Rule 9 as ultra vires the Act. The civil Court cannot treat a statutory provision as invalid and if found necessary reference has to be made by it to the High Court as per Section 113 of the Code of Civil Procedure. 28. The learned Senior Counsel Mr.C.Selvaraju, would advance his argument to the effect that the plaintiff A.A.Subba Raja having signed the resolution dated 08.09.1990, as found in page No.28 of the additional typed set filed by him, which was passed by the Educational Agency during the year 1990, cannot veer round and act antithetical to his own commitment and file the suit as against the Trust itself; if at all he had any grievance as Secretary of the College Committee, he should have sought remedy by approaching the Trust itself or the District Court having jurisdiction to pass orders relating to the scheme concerning the governing of the Trust. There is no estoppel against law. There is no estoppel against law. An individual, let him be a member of the Trust, still cannot be prevented from approaching the Court for redressal. Signing the resolution agreeing for Educational Agency to have a bank account and to deal with the accounts is entirely different from asserting his right as Secretary as per Rule 9 of the Tamil Nadu Private Colleges Regulations Act, 1976. 29. The learned Senior Counsel for the defendant would contend that if the Secretary of the College Committee misused the funds by operating the bank accounts, it would be very difficult to control him or recover the loss from him and that purely for the purpose of having a check over the Secretary and to prevent him from misusing or misappropriating the funds, such an arrangement was made earlier in the year 1990 itself to the effect that the Educational Agency should have the power to operate the accounts. Such an argument fails to carry conviction which this Court for the reasons set out infra. The Tamil Nadu Private Colleges Regulations Act, 1976, and the rules formulated thereunder are adequately taking care of such a situation of misusing or misappropriating the college funds and the method of checking it is also found spelt out therein. 30. Rules 21 and 22 are governing accounts and audit. The scheme of the said Act and Rules would unambiguously lay down the procedures to the effect that the educational agency is always having control over the Secretary being its nominee and it has got the power to remove the Secretary. 31. Over and above that in the college committee also, the representatives of the Educational Agency are functioning. The Secretary has to act as per the directions of the College Committee also. In fact, there is dual control over the Secretary, one by the Educational Agency and another by the College Committee. 32. As per Rule 21, the Director or any person authorised by him at any time, could scrutinize and supervise the accounts in addition to annual audit. As such in the wake of all the safeguards, there is no reason to hold that the Secretary shall not be allowed to operate the bank accounts of the college. 33. 32. As per Rule 21, the Director or any person authorised by him at any time, could scrutinize and supervise the accounts in addition to annual audit. As such in the wake of all the safeguards, there is no reason to hold that the Secretary shall not be allowed to operate the bank accounts of the college. 33. It is also relevant to note that the same rule 9 contemplates that the Principal of the College to be responsible for special fees and if the arguments advanced by the Senior Counsel is applied to the Principal also, then the Principal cannot be allowed to act or operate the bank account relating to the special fee funds. Incidentally, I would like to highlight that in the second appeal, such a plea cannot be raised as before the trial Court, out of the nine documents marked i.e., Exs.A.1 to A.9, such a resolution dated 08.09.1990 is not found marked. However, in the interest of justice, I have also considered this plea also as discussed supra. 34. The maxim, "Generalia specialibus non derogant" is squarely applicable to the facts and circumstances of the case. Even though, generally, the Educational Agency is vested with the ownership over the properties, yet the legislators in their wisdom thought fit to invest the specific operation of the college accounts with the Secretary and by no stretch of imagination, it could be stated to be unreasonable or irrational or against the rule of law. 35. The Secretary of the College Committee, should have perfect control over the accounts as otherwise, his post would be a dummy post and he would be nothing but a sinecure and an official without port-folio. In view of the above, no elaboration is required in this regard. 36. During arguments what transpired is that the said A.A.Subba Raja is not functioning now as a Secretary of the College Committee, but he is functioning as Managing Trustee of the Trust as per the nomination made by the learned Principal District Judge and he has been functioning. 37. In the result, the substantial questions of law is decided to the effect that the first appellate Court misdirected itself in interpreting the provisions of law and applying the facts wrongly and thereby reversed the order of the District Munsif. 38. 37. In the result, the substantial questions of law is decided to the effect that the first appellate Court misdirected itself in interpreting the provisions of law and applying the facts wrongly and thereby reversed the order of the District Munsif. 38. The points framed under the Civil Revision Petitions are answered to the effect that absolutely there was no disqualification on the part of A.A.Subba Raja in occupying the post of Managing Trustee. 39. Accordingly, the second appeal is allowed, setting aside the judgment and decree of the first appellate Court in A.S.No.5 of 2001 on the file of the Principal Sub Court, Srivilliputtur and by confirming the judgment and decree, dated 05.02.2001, passed in O.S.No.369 of 2000 by the Principal District Munsif Court, Srivilliputtur. Consequently, both the Civil Revision petitions are dismissed confirming the order of the learned District Judge. However, in the facts and circumstances of the case, the respective parties are directed to bear their costs throughout. G. Rajasuria, J.: This Court already on 13.12.2006 passed Common Order in the aforesaid matters. The learned Counsel for the appellant in S.A.No.504 of 2004 filed a Memo to the effect that the name of the learned Counsel for the appellant has been wrongly typed as Mr.PT.S.Narendravasan, instead of Mr.N.S.Nandakumar. 2. This is only formal in nature and the typographical error in specifying the name of the Advocate for the appellant in S.A.No.504 of 2004 as per the Memo filed by the learned Counsel for the appellant, is ordered to be corrected. 3. Hence, the Registry is directed to issue fresh order copy with the above correction and inform the other side counsel also.