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2008 DIGILAW 645 (BOM)

Khojeste Mistree v. Bombay Parsi Punchayet

2008-04-30

ANOOP V.MOHTA, S.RADHAKRISHNAN

body2008
JUDGMENT DR. S. RADHAKRISHNAN, J.- 1. By this Appeal, the Appellants are challenging the order dated 8th February,2007 passed by the learned Single Judge which was passed with regard to an Originating Summons seeking opinion/answers on the following questions which were answered as indicated against each question: i) Whether under the provisions NO of the Scheme including Clause 61 read with Clause 49(g) of the Scheme for the election of Trustees of the Funds and Immovable Properties of the Parsee Punchayat of Bombay (Exhibit "B" hereto), Defendant Nos.3,4 and 5 have vacated their office as Trustees of the 1st Defendant Trust on submission of their resignation contained in the Letter of Resignation dated 19th June,2006 (Exhibit"C" hereto). ii) Whether under the provisions NO of the Scheme including Clause 61 read with Clause 49(g) of the Scheme for the election of Trustees of the Funds and Immovable Properties of the Parsee Panchayat of Bombay (Exhibit"B" hereto), Defendant No.2 has vacated his office as Trustee of the 1st Defendant Trust on submission of his resignation contained in the Letter of Resignation dated 20th June,2006 (Exhibit"D" hereto.) iii) Whether after submitting resignations as Trustees effective from a specified date, it is permissible for Defendant Nos.2 to 5 who were elected and appointed by the Anjuman Committee as Trustees of the 1st Defendant, to rejoin the Board of Trustees of the 1st Defendant by withdrawing their resignations ? Does not arise. 2. The learned Senior Counsel Dr. Tulzapurkar pointed out that the reasons given by the learned Judge with regard to question Nos.1 and 2 are as under: i) The letter of resignation by a Trustee has to be addressed to and received by all the Trustees. The letter of resignation by Respondent Nos.3,4 and 5 and the letter of resignation by Respondent No.2 are not addressed to and received by the Trustees. The letters are not in accordance with the mandate of the Scheme. ii) The letter of resignation of Respondent Nos.3,4 and 5 was received by the Chairman. The concept of a Chairman of Trust is unknown to law. In the absence of any specific express provision in the Scheme, no additional powers, duties, rights or responsibilities can be given to any one of the Trustees as all the trustees must act. ii) The letter of resignation of Respondent Nos.3,4 and 5 was received by the Chairman. The concept of a Chairman of Trust is unknown to law. In the absence of any specific express provision in the Scheme, no additional powers, duties, rights or responsibilities can be given to any one of the Trustees as all the trustees must act. It is not the function of the Chairman to do the ministerial act of forwarding resignations of some trustees to the other trustees. iii) The letters of resignation are not written to all trustees and they are not accepted by all trustees. iv) There is no compliance with the provisions of clause 39 of the Scheme. v) The receipt is required to be of the letter of resignation and not by acquiring knowledge from a newspaper or any other publication. 3. Dr. Tulzapurkar, the learned Senior Counsel for the Appellants also pointed out that in view of the above, the learned Judge had recorded, that question No.3 was not required to be answered as the Learned Judge has given a finding that there was no valid resignations. 4. Under the aforesaid facts and circumstances of the case, the learned Senior Counsel Dr.Tulzapurkar raised the following questions in the present Appeal. i) When the scheme contemplates a unilateral act of resignation, is any action further to the act of communicating unequivocally the intention to resign in present, necessary to make the resignation effective. ii) In the absence of any specific provision in the scheme providing for the manner of submitting resignation by a Trustee, when the factum of resignation is communicated to the concerned parties and such parties have acknowledged receipt of resignation and acted on that basis by requesting for withdrawal of resignations, can the resignations be treated as ineffective, on the ground that the letters of resignation were not addressed to the Trustees. iii) Can the Trustees having accepted the fact of resignation and having acted on that basis, be permitted to resile from that position involving legal consequences, so as to prejudice the rights of the members of the Anjuman Committee to fill up the vacancies caused by resignations. 5. Dr.Tulzapurkar, the learned Senior Counsel gave a brief out-line of the entire matter starting right from the year 1906 till 8th February,2007. 1906 Scheme framed by Bombay High Court in Suit No.689 of 1906. 18/06/1910 Amendments to the scheme. 5. Dr.Tulzapurkar, the learned Senior Counsel gave a brief out-line of the entire matter starting right from the year 1906 till 8th February,2007. 1906 Scheme framed by Bombay High Court in Suit No.689 of 1906. 18/06/1910 Amendments to the scheme. To 06/01/1993 12/06/1944 Order of Blagden J. in Misc. Petition No.73/1944 holding that it is competent for a Trustee to resign his or her office as a Trustee. 01/04/2005 Order allowing amendments to the Scheme (not relevant as the amendments not effective on the dates of letters of resignation of Respondent Nos.3 to 5 and of Respondent No.2) 19/06/2006 Letter of Resignation of Respondent Nos.3 to 5 addressed to Respondent No.2 (Chairman) copy endorsed to Respondent No.8. 19/06/2006 Letter from Respondent No.2 to respondent Nos.3 to 5 acknowledging receipt of letter dated 19th June,2006 from Respondent Nos.3 to 5 to him. 20/06/2006 Letter of resignation of Respondent No.2 addressed to Respondent Nos.6 and 7 with a copy to Respondent No.8. 20/06/2006 Respondent No.2 delivered to Respondent No.6 his letter dated 20th June,2006 and a copy of the letter dated 19th June,2006 of Respondent Nos.3 to 5 with copies of both the letters to be delivered to Respondent No.7 (as stated by Respondent No.2 in his affidavit dated 29th January,2007). 21/06/2006 Letter of Respondent Nos.2 and 3 to 5 to the members of Anjuman Committee confirming their respective resignations from the office of Trustees. Prior to 26/06/2006 Respondent No.7 received from Respondent No.2 the letter dated 20th June,2006 of Respondent No.2 and a copy of the letter dated 20th June,2006 of Respondent Nos.3 to 5 as stated by Respondent No.7 in para 4 of his affidavit dated 29th January,2007. 26/06/2006 Letter of Respondent Nos.6 and 7 requesting Respondent NO.2 and Respondent Nos.3.3 to 5 to withdraw their resignations. 29/06/2006 Letter of Respondent Nos.2 to 5 addressed to Respondent Nos.6 and 7 withdrawing their resignations. 28/06/2006 Published Statement of Respondent Nos.2 to 7 that Respondent Nos.2 to 5 had agreed to rejoin the Board of Trustees. 19/10/2006 Originating Summons taken out by Appellants. 08/02/2007 Impugned order. 6. Dr. Tulzapurkar, thereafter to understand the entire controversy in a proper perspective referred to a comparative statement of relevant clauses of the Scheme for the election of Trustees of funds and immovable properties of the Parsi Panchayat of Bombay. 19/10/2006 Originating Summons taken out by Appellants. 08/02/2007 Impugned order. 6. Dr. Tulzapurkar, thereafter to understand the entire controversy in a proper perspective referred to a comparative statement of relevant clauses of the Scheme for the election of Trustees of funds and immovable properties of the Parsi Panchayat of Bombay. The comparative chart reads as under: No Scheme as amended by Scheme as amended by Amended scheme Order dated 7/02/1935 Order dated 06/01/93 effective from 21/09/06 (Exhibit-“A” of Misc. sanctioned under orders Petition No.4/2000) dated 01/04/05 and 21/08/06 1. 62A Any member of the 39. Any member of the 38.Any member of the Anjuman Committee may Anjuman Committee may Anjuman Committee Apply in writing to the resign by a letter in writing may resign by a letter in Trustees to resign as such to the Trustees and such writing to the Trustees Member and such resigna- resignation shall take effect and such resignation shall Tion shall have effect from the date of the receipt shall take effect from the From the date of receipt of such letter by the date of the receipt of Of his or her application. Trustees. Such letters by the Trustees. 2. 71. Any member of the 49. Any member of the 47. Any member of the Anjuman Committee shall Anjuman Committee shall Anjuman Committee shall Vacate his office as a cease to be a member of cease to be a member of Member of such such Committee : such Committee : Committee :- a) If such member has a) If such person has a) If such person has been sentenced by any been convicted by a been convicted by a Court Court to imprisonment or Court in India for an in India for an offence Whipping for an offence offence involving moral involving moral turpitude Punishable with imprison- turpitude and is sentenced and is sentenced in Ment for a term exceeding in respect thereof to respect thereof to Six months, or to transport- imprisonment for not less imprisonment for not less Ation such sentence not than six months. Than six months. b) If he should by b) If he is found to be b) If he is found to be reason of mental or bodily of unsound mind by a of unsound mind by a infirmity becomes incapa- Court of competent Court of competent ble of acting jurisdiction. Than six months. Than six months. b) If he should by b) If he is found to be b) If he is found to be reason of mental or bodily of unsound mind by a of unsound mind by a infirmity becomes incapa- Court of competent Court of competent ble of acting jurisdiction. Than six months. c) If he should by c) If he applies to be c) If he has applied to reason of mental or bodily adjudicated an insolvent. Be adjudicated an infirmity becomes incapa- insolvent. Ble of acting. d) If he should cease to d) If he is adjudged an d) If he is adjudged an profess the Zoroastrian insolvent. Insolvent. Faith e) If he should by reason e) If he should by of mental of bodily infirmity reason of mental or bodily be incapable of acting. Infirmity be incapable of acting. f) If he ceases to profess f) If he ceases to the Zoroastrian Faith profess the Zoroastrian Faith. g) If such person resigns g) If such person from the Anjuman resign form the Anjuman Committee. Committee. 3. 56. Every member of the 55. Every member the Anjuman Committee as Anjuman Committee as As constituted at the time constituted at the time When any such vacancy when any such vacancy As in Rule 52 herein as in Rule 50 hereinbefore Before mentioned shall mentioned shall have Have occurred shall, on occurred shall on applying Applying for the same at the for the same at the office Office of the Trustees and on of the Trustees and on Payment of such fee as the payment of such fee as the Trustees may from time to Trustees may from time to Time fix, be entitled to be time fix, be entitled to be Supply with a copy of such supplied with a copy of List as in rule 54 herein- such list as in Rule 53 Before mentioned after the hereinbefore mentioned Expiration of 21 days from after the expiration of 21 The date when such vacancy days from the date when As in the last rule mentioned such vacancy as in the last Shall have occurred rule mentioned shall have Occurred. 4. 80.All the rules herein- 60(a).All the Rules herein- 59(a). 4. 80.All the rules herein- 60(a).All the Rules herein- 59(a). All the Rules herein- before contained for before contained for before contained for regulating the procedure at regulating the procedure at regulating the procedure the election of the members the election of the member at the election of the of the Anjuman Committee of the Anjuman Committee members of the Anjuman shall so far as they may be shall mutatis mutandis apply Committee shall mutatis applicable apply mutatis to the election of a Trustee mutandis apply to the mutandis to the election of to fill a vacancy in the office election of a Trustee to a trustee to fill a vacancy in of the Trustees. Fill a vacancy in the office the office of Turstees of the Trustees. Except- a) In so far as they are modified by the Rules here- inbefore contained. b) …………… c) …………… 5. 81. Fill a vacancy in the office the office of Turstees of the Trustees. Except- a) In so far as they are modified by the Rules here- inbefore contained. b) …………… c) …………… 5. 81. Any Trustee shall vacate 61.A Trustee shall vacate 60.A trustee shall vacate his office if he shall become his office on the happening his office on the happen- a Bankrupt or Insolvent or of any event in connection ing of any event in conne- on the happening of any with him which would under ction with him which event in connection with the rules hereinbefore would under the rules him which would under the contained if it had happened hereinbefore contained in rules hereinbefore contained in connection with member it has happened in connec- if it had happened in connec- of the Anjuman Committee tion with member of the tion with a member of the have rendered it necessary Anjuman Committee have Anjuman Committee have for such member of the rendered it necessary for Rendered it necessary for Anjuman Committee to such member of the Such member of the cease to be a member, or if Anjuman Committee to Anjuman Committee to he should be absent from cease to be a member, or Vacate his office, or if he India for more than twelve if he should be absent from Should be absent from India consecutive months without India for more than twelve For more than 12 conse- leave from the board of consecutive months Cutive months without leave Trustees or if he should be without leave from the From Board of Trustees, or so absent for more than 18 Board of Trustees or if he If he should be so absent for consecutive months under should be so absent for More than 18 consecutive any circumstances. More than 18 consecutive Months under any months under any Circumstances. Circumstances. 6. 96. Whenever doubt shall 80.Whenever doubts shall 79. More than 18 consecutive Months under any months under any Circumstances. Circumstances. 6. 96. Whenever doubt shall 80.Whenever doubts shall 79. Whenever doubt shall arise as to the construction arise as to the construction arise as to the construction to be placed upon any provi- to be placed upon any provi- to be placed upon any sions if this scheme it shall sion of the Scheme it shall provision of the Scheme be competent to the Trustees be competent to the Trustees it shall be competent to and on the written requisi- and on the written requisi- the Trustees and on the tion signed by a majority tion signed by a majority of written requisition signed of the Anjuman Committee the Anjuman Committee by a majority of the it shall be incumbent upon it shall be incumbent upon Anjuman Committee it the Trustees to submit such the Trustees to submit shall be incumbent upon doubts to the Judge in such doubts to the Judge the Trustees to submit Chambers for decision as to in Chambers for decision such doubts to the Judge The construction to be placed as to the construction to be in Chambers for decision On such provision. Placed on such provision as to the construction to be Placed on such provision. 88. When the date of any 87. When the date of any application or of receipt of application or of receipt any application to the of any application to the trustees is referred to in Trustees is referred to in this Scheme it shall be this Scheme it shall be understood to be the date understood to be the date of receipt of such application of receipt of such application in the office of the Trustees. In the office of the Trustees. S.105-A(a) When the date 88. When the date of any 88. In the office of the Trustees. S.105-A(a) When the date 88. When the date of any 88. When the date of any Of any application or of re- application or of receipt of application or of receipt Ceipt of any application of any application to the of any application to the To the trustee is referred to Trustees is referred to in Trustees is referred in this In this Scheme it shall be this Scheme it shall be Scheme it shall be under- Understood to be the date understood to the date of stood to be date of receipt Of receipt of such appica- receipt of such application of such application in the Tion in the office of the in the office of the Trustees. Office of the Trustees. Trustees, (b) and then the Secretary of the Trust is Referred to it shall be Understood to include a Joint Secretary. 7. Dr.Tulzapurkar, the learned Senior Counsel for the Appellant also contended that the resignation of a Trustee can be analysed with reference to Clause 61 read with Clauses 49(g) and Clause 39 of the Scheme. 8. The learned Senior Counsel emphasised that in the absence of any provision in the Scheme requiring acceptance of the resignation, the resignation is an unilateral act by a Trustee and it becomes effective when such resignation is communicated to the other Trustees. The other Trustees are not required to take any action and the resignation takes effect from the date of the receipt of such communication and the resignation is intended to operate in praesenti. 9. In that context Dr.Tulzapurkar referred to a judgment of the Hon’ble Supreme Court in the case of Union of India & Ors. Vs. Gopal Chandra Misra (1978) 2 301 SCC 301, especially paragraphs 24 to 30 and 41 which read as under: 24. ’Resignation’ in the dictionary sense, means the spontaneous relinquishment of one’s own right. This is conveyed by the maxim : Resionatio est juris propii spontaneu refutatio (See Earl Jowitt’s Dictionary of English Law). In relation to an offence, it connotes the act of giving up or relinquishing the office. ’Resignation’ in the dictionary sense, means the spontaneous relinquishment of one’s own right. This is conveyed by the maxim : Resionatio est juris propii spontaneu refutatio (See Earl Jowitt’s Dictionary of English Law). In relation to an offence, it connotes the act of giving up or relinquishing the office. To "relinquish an office" means to "cease to hold" the office, or to "Loose hold of" the office (of Shorter Oxford Dictionary); and to "loose hold of office", implies to "detach", "unfasten", "undo or untie the binding knot or ling" which holds one to the office and the obligations and privileges that go with it. 25. In the general juristic sense, also, the meaning of "resigning office" is not different. There also, as a rule, both, the intention to give up or relinquish the office and the concomitant act of its relinquishment, are necessary to constitute a complete and operative resignation (see, e.g.American Jurisprudence, Second Edn., Vol.15A, page80), although the act of relinquishment may take different forms or assume a unilateral or bilateral character, depending on the nature of the office and the conditions governing it. Thus, resigning office necessarily involves relinquishment of the office, which implies cessation or termination of, or cutting asunder from the office. Indeed, the completion of the resignation and the vacation of the office, are the casual and effectual aspects of one and the same event. 26. From the above dissertation, it emerges that a complete and effective act of resigning office is, one which severs the link of the resign or with his office and terminates its tenure. In the context of Article 217(1), this test assumes the character of a decisive test, because the expression "resign his office" - the construction of which is under consideration - occurs in a proviso which excepts or qualifies the substantive clause fixing the office-tenure of a Judge up to the age of 62 years. 27. Before applying this test to the case in hand, it is necessary to appreciate the true nature of the letter, dated May 7,1977, sent by the Judge to the President. 28. The substantive body of this letter (which has been extracted in full in a foregoing part of this judgment) is comprised of three sentences only. In the first sentence, it is stated : "I beg to resign my office as Judge, high Court of Judicature at Allahabad". 28. The substantive body of this letter (which has been extracted in full in a foregoing part of this judgment) is comprised of three sentences only. In the first sentence, it is stated : "I beg to resign my office as Judge, high Court of Judicature at Allahabad". Had this sentence stood alone, or been the only content of this letter, it would operate as a complete resignation in praesenti, involving immediate relinquishment of the office and termination of his tenure as Judge. But this is not so. The first sentence is immediately followed by two more, which read : "I will be on leave till July 31,1977. My resignation shall be effective on August 1,1977". The first sentence cannot be divorced from the context of the other two sentences and construed in isolation. It has to be read along with the succeeding two which qualify it. Construed as a whole according to its tenor, the letter dated May,7 1977, is merely an intimation or notice of the writer’s intention to resign his office as Judge, on a future date, viz., August 1, 1977. For the sake of convenience, we might call this communication as a prospective or potential resignation, but before the arrival of the indicated future date, it was certainly not a complete and operative resignation because, by itself, it did not and could not, sever the writer from the office of the Judge, or terminate his tenure as such. 29. Thus tested, sending of the letter dated May 7,1977 by appellant 2 to the President, did not constitute a complete and operative resignation within the contemplation of the expression "resigns his office" used in proviso (a) to article 217(1). Before the arrival of the indicated future date (August 1, 1977), it was wholly inert, inoperative and ineffecitve, and could not, and in fact did not, cause any jural effect. 30. Before the arrival of the indicated future date (August 1, 1977), it was wholly inert, inoperative and ineffecitve, and could not, and in fact did not, cause any jural effect. 30. The learned Judges of the High Court (in majority) conceded that appellant 2 "cannot be taken to have resigned on a date prior to August 1,1977", and "the vacation of the seat may be on (the) future date", "because he made his choice to resign from August 1,1977", yet, they hold that "the factum of resignation became complete the moment respondent 1 (Shri Satish Chandra) in his handwriting, sent a letter of resignation of the President of India" and on May 7, 1977, itself, cut short the date of retirement of the Judge from September 1,1986 to August 1,1977, and there could be "no withdrawal of the same unless the Constitution so provided". 41. The general principle that emerges from the foregoing conspectus, is that in the absence of anything to the contrary in the provisions governing the terms and conditions of the office/post, an intimation in writing sent to the competent authority by the incumbent, of his intention or proposal to resign his office/post from a future specified date, can be withdrawn by him at any time before it becomes effective, i.e. before it effects termination of the tenure of the office/post or the employment. 10. Thereafter Dr.Tulzapurkar, the learned Senior Counsel referred to another judgment of the Hon’ble Supreme Court in the case of Moti Ram Vs. Param Dev (1993) 2 SCC 725, wherein he emphasized on paragraph Nos.16 and 18 which read as under :-- 16. As pointed out by this Court, ‘resignation’ means the spontaneous relinquishment of one’s own right and in relation to an office, it connotes the act of giving up or relinquishing the office. It has been held that in the general juristic sense, in order to constitute a complete and operative resignation there must be the intention to give up or relinquish the office and the concomitant act of its relinquishment. It has also been observed that the act of relinquishment may take different forms or assume a unilateral or bilateral character, depending on the nature of the office and the conditions governing it. It has also been observed that the act of relinquishment may take different forms or assume a unilateral or bilateral character, depending on the nature of the office and the conditions governing it. If the act of relinquishment is of unilateral character, it comes into effect when such act indicating the intention to relinquish the office is communicated to the competent authority. The authority to whom the act of relinquishment is communicated is not required to take any action and the relinquishment takes effect from the date of such communication where the resignation is intended to operate in praesenti. A resignation may also be prospective to be operative from a future date and in that event it would take effect from the date indicated therein and not from the date of communication. In cases, where the act of relinquishment is of a bilateral character, the communication of the intention to relinquish, by itself, would not be sufficient to result in relinquishment of the office and some action is required to be taken on such communication of the intention to relinquish, e.g., acceptance of the said request to relinquish the office, and in such a case the relinquishment does not become effective or operative till such action is taken. As to whether the act of relinquishment of an office is unilateral or bilateral in character would depend upon the nature of the office and the conditions governing it. 18. A contract of employment, however, stands on a different footing wherein the act of relinquishment is of bilateral character and resignation of an employee is effective only acceptance of the same by the employer. In so far as Government employees are concerned, there are specific provisions in the service rules which require acceptance of the resignation before it becomes effective. In Raj Kumar V. Union of India, it has been held: "...But when a public servant has invited by his letter of resignation determination of his employment, his services normally stand terminated from the date on which the letter of resignation is accepted by the appropriate authority, and in the absence of any law or rule governing the conditions of his service to the contrary, it will not be open to the public servant to withdraw his resignation after it is accepted by the appropriate authority. Till the resignation is accepted by the appropriate authority in consonance with the rules governing the acceptance, the public servant concerned has locus poenitentiae but not thereafter." 11. Dr.Tulzapurkar further contended that there is no specific mode provided in the Scheme for resignations. The unequivocal intention to resign must be communicated to other Trustees i.e. the only requirement. Therefore, the learned Senior Counsel contended that once a communication takes place, the resignation becomes effective. In the present case, the letter of resignation of Respondent Nos.3 to 5 or copies thereof have been received by Respondent Nos.2,6 and 7. Therefore, he contended from the material placed on record that it is clearly established that the fact of communication to Respondent Nos.2,6 and 7 of the unequivocal intention of resigning on the part of the Respondent Nos.3 to 5 from the office of the Trustees is explicitly clear. Similarly, the learned Senior Counsel also contended that the unequivocal intention of Respondent No.2 to resign was communicated to Respondent Nos.6 and 7 and 3 to 5. He emphasized that the factum of receipt of resignations of Respondent Nos.2 to 5 is evidenced by; i) the letter dated 26th June,2006 from Respondent Nos.6 and 7 to Respondent Nos.2 to 5. ii) letter dated 29th June,2006 from Respondent Nos.2 to 5 addressed to Respondent Nos.6 and 7 and iii) the published statement of Respondent Nos.2 to 7 dated 28th June,2006. 12. Dr.Tulzapurkar further contended that Clause 39 of the Scheme does not apply to the Trustees. He pointed out that the clause provides for the manner of resignation by a member of the Anjuman Committee. There is no manner prescribed in the Scheme for resignation by a Trustee. Therefore the only requirement for a resignation by a Trustee to be effective is receipt of communication by all Trustees of the unequivocal intention to resign. Once it is proved that; i) the Trustees resigning unequivocally expressed their intention to resign in praesenti and ii) such intention has been reached or has been communicated to the other Trustees, resignation becomes effective. Therefore the learned Senior Counsel contended that the resignations of Respondent Nos.2 to 5 have in law become effective. Similarly, he also contended that Clause 61 only refers to Clause 49 and by no stretch of imagination, Clause 39 can be incorporated under Clause 61. Therefore the learned Senior Counsel contended that the resignations of Respondent Nos.2 to 5 have in law become effective. Similarly, he also contended that Clause 61 only refers to Clause 49 and by no stretch of imagination, Clause 39 can be incorporated under Clause 61. Whenever the framers intended to apply the procedure regarding Anjuman Committee to Trustees, they made a specific provision. In that context the learned Senior Counsel referred to Clause 60A of the Scheme. 13. Dr.Tulzapurkar also contended that the principles applicable in the case of resignation from a Club or in the case of a Director of a Company, the Articles of Association of which do not prescribe any mode for resignation, should apply in the instant case and therefore Respondent Nos.2 to 5 cannot claim that their resignations did not become effective. In that context, he referred to Halsbury’s Laws of England 4th Edition Vol.6 para 229 which reads as under:- 229. Resignation from an unincorporated members’ club : Subject to any provision in the rules to the contrary, a member of an unincorporated members’ club may at any time terminate his membership on advising the secretary of his intention to resign, he may also by his conduct be deemed to have resigned, as for example when he fails to pay his subscriptions, notwithstanding a provision in the rules requiring the club to give formal notice of exclusion to a member of defaulting in his subscriptions. The resignation does not require any acceptance by the committee, and cannot, in the absence of a bye law to the contrary, be withdrawn or revoked. A member who sends a letter of resignation thereupon ceases to be a member, and can only be reinstated by re-election. 14. Similarly, Dr.Tulzapurkar also referred to a English judgment in the case of Finch Vs. Oake (1896) 1 A.) Ch.409 (C.A.), wherein it is held that a member was entitled to retire at any time without the consent of other members; that on the receipt by the society of a letter from a member stating his wish to retire he at once ceased to be a member, without the necessity of the acceptance by the society of his resignation; that he could not before acceptance withdraw his resignation; and that he could not become a member again without re-election. 15. 15. Similarly, Dr.Tulzapurkar also referred to a Halsbury’s Laws of England 4th Edition Volume 7(I) paragraph 664 which defines Resignation Resignation, which reads as under: 664. Resignation : Where by the articles a director has power to resign at any time, his resignation takes effect independently of acceptance by the other directors or the company. Where the articles of association of a company provide that the office of a director is to be vacated ipso facto if by notice in writing to the company a director resigns office, an oral resignation, if accepted by the company, is valid. 16. The learned counsel Mr. Tulzapurkar also referred to a case of Glossop V. Glossop, another English judgment reported in 370 (1907) 2 Ch 370, wherein it is held that the Managing Director could not withdraw his resignation without the consent of the company; that by his letter of resignation he vacated his office; and that the resolution of the board was effective and valid. 17. Dr.Tulzapurkar, the learned Senior Counsel also referred to the letters of resignation even though they are addressed to all the Trustees and they were received by all the Trustees as that can be seen from the record. In view thereof Dr.Tulzapurkar contended that the resignations of Respondent Nos.2 to 5 cannot be disputed in law as the requirement of the resignation letters being addressed to and received by all the Trustees is by their conduct given a go bye and they have proceeded on the footing that in fact Respondent Nos.2 to 5 have resigned. In view of their conduct, they cannot be heard to say that they did not treat the resignations as having become effective. 18. The learned Senior Counsel appearing on behalf of the Appellant further contended that the plea taken in the Affidavits by Respondent Nos.1 to 7 that unless Change Report is filed under Section 22 of the Bombay Public Trusts Act,1950, the resignations cannot become effective, is untenable in law. The trustees who have resigned are not required to take any steps under Section 22 and the duty of the other trustees to do so. The provisions of Section 22 are similar to the provisions of the Companies Act,1956 under which change is Directorship is required to be informed to the Registrar by filing Form No.32. The trustees who have resigned are not required to take any steps under Section 22 and the duty of the other trustees to do so. The provisions of Section 22 are similar to the provisions of the Companies Act,1956 under which change is Directorship is required to be informed to the Registrar by filing Form No.32. It has been held that failure to file such form does not negate the factum of resignation of a director. In that context, the learned Senior Counsel for the Appellant relied on a decision of our High Court in the case of Dushyant D.Anjaria Vs. Wall Street Finance Ltd. Company Cases (2001) 655 655, : wherein it is held that; "the first proviso to section 260 of the Companies Act, 1956 provides that an additional director shall hold office only upto the date of the next annual general meeting. That means an additional director of the company shall cease to be director of the company after the last date on which the annual meeting of the company should have been held under the companies Act. In other words, the co-option of an additional director in terms of the first proviso to section 260 unless reappointed can only be up to the last date on which the next annual general meeting should have been held." 19. Similarly, the learned Senior Counsel relied on a decision of the Division Bench of our High Court in the case of Saumil Dilip Mehta vs. State of Maharashtra 36 & Ors., 2002(2) Mh.L.J. 36 , wherein in paragraph Nos.6 and 7, this Court had observed that; 6. The submissions advanced by the litigating parties are touching an important point involved in this matter which make us to express our views on the point whether a director of a public or private limited company can resign unilaterally and that too by writing a letter to the chairman of the said company or its secretary. Is it necessary for such a director to fill up form No.32 and is obliged to give a notice or intimation to that effect to the Registrar of Companies ? The question arises for our adjudication is whether that particular director is obliged to give such information to the Registrar of Companies and whether he cannot retire without complying with the said requirement. The question arises for our adjudication is whether that particular director is obliged to give such information to the Registrar of Companies and whether he cannot retire without complying with the said requirement. Keeping in view the provisions of the Companies Act, the relevant articles of the Constitution of India, we come to the conclusion that a director of the public limited company or private limited company can tender his resignation unilaterally and without filling in form 32 and without sending a notice to the Registrar of Companies. It is clear that the filling in the said form and giving due intimation and information to the Registrar of Companies is the duty of the Company Secretary and not of an individual director. Suffice it to say that what he has to do is to send in writing a letter informing either the Chairman or the Secretary of the Company, as the case may be, his intention to resign from the post of the Director of the said company. Thereafter the said letter has to be moved in the meeting of the directors of the company, may be ordinary meeting or may be extra-ordinary or special meeting, as the case may be and the Board of Directors have to take a decision whether the Board is accepting his resignation or not. An intimation should be sent to such director and after such resolution is passed, the Company Secretary is under the obligation to comply with the legal formalities for giving a finishing touch to the resolution which has been passed in the said meeting of the Board of Directors. It is for the Company Secretary to fill in the forms as prescribed and to give due information and intimation to the Registrar of Companies, as the law requires. Thereafter, it has to be so mentioned in all prescribed registers of the company, accounts and balance sheet of the company and thereafter the said fact is to be brought to the notice of the members of the company as early as possible and at the latest in annual general meeting. 7. Thereafter, it has to be so mentioned in all prescribed registers of the company, accounts and balance sheet of the company and thereafter the said fact is to be brought to the notice of the members of the company as early as possible and at the latest in annual general meeting. 7. When a director has tendered his resignation and the Board of Directors has accepted it and has acted on it, such director cannot be held liable for the liability incurred by the said company after the date of acceptance of his resignation except the liability which has been incurred by him for purchase of shares of the said company and nothing more. 20. He further placed his reliance on the decision of the Karnataka High Court in the case of Mother Care (India) Ltd. Vs. Prof.Ramaswamy P.Aiyar, ILR 2004 Kar 1081, especially on paragraph No.6 and 8, which read as under: 6. The Respondent-company was ordered to be wound up by this Court on 15-11-1999. The Director of the company who is incharge of the affairs of the Company under liquidation has sworn to an affidavit stating that the Applicant has resigned from the Board as per his letter dated 05-07-1995 which was duly accepted on 09-08-1995. But, due to inadvertence Form No.32 was not filed. The said fact is also clear from the annual report of the Company for the year ending 31-03-1995 where the name of the applicant is not shown. The letters of the auditor of the Company addressed to the Tax Recovery Officer shows that the applicant ceased to be the Director. It is also evidenced by the certificate issued by the auditors. Under these circumstances, it is clear that the applicant ceased to be the Director of the Company under liquidation from 05-07-1995, the date of resignation letter which was duly accepted on 09-08-1995. Merely because the Company has not filed Form No.32 as required under law and the same is not registered with the Registrar of Companies it cannot be said that the applicant continues to be the Director of the Company under Liquidation. 8. In the case of Dushant D. Anjaria Vs. Merely because the Company has not filed Form No.32 as required under law and the same is not registered with the Registrar of Companies it cannot be said that the applicant continues to be the Director of the Company under Liquidation. 8. In the case of Dushant D. Anjaria Vs. Wall Street Finance Ltd. (2201) Company Cases 655, the Bombay High Court held that the resignation of a Director would be effective from the date it was submitted, for the reason that letter brings out clearly the intention of the person to resign. So far as other formalities like filling up Form 32 and sending it to the Registrar were concerned, it was for the company to comply with them in conformity with the provisions of Section 302 or Section 303 of the Companies Act. Where there was delay or negligence on the part of the Company in intimating the Registrar about the date of resignation, the Director who had resigned could not be saddled with responsibility and liability for such delay. 21. Dr.Tulzapurkar, the learned Senior Counsel thereafter contended that once resignation become effective, Respondent Nos.2 to 5 were not entitled to withdraw the same, since a trustee is entitled to withdraw resignation only before it becomes effective and not thereafter. In that behalf, he referred to the judgments of the Hon’ble Supreme Court in the case of Union of India Vs. Gopal Chandra Hisna (1978) 2 SCC 301 as well as Union of India Vs. Parthasarathy AIR 158 2001 SC 158. 22. Finally, Dr.Tulzapurkar pointed out that the rejoining of Respondent Nos.2 to 5 as trustees is not valid as a trustee is required to be elected by the Anjuman Committee. Respondent Nos.2 to 5 were not elected after they ceased to be trustees. Dr.Tulzapurkar, the learned Senior Counsel for the Appellant, under the aforesaid facts and circumstances of the case, strongly prays that the judgment of the learned Single Judge is not sustainable in law and the same ought to be set aside. 23. In reply to the above, the learned Senior Counsel Mr.Iqbal Chagla appearing on behalf of the Respondent Nos.1 to 7 at the outset pointed out that there is a clear non compliance of the provisions of Section 3 and 4 of the Contract Act and as such the resignation could not be construed to have been acted upon. 23. In reply to the above, the learned Senior Counsel Mr.Iqbal Chagla appearing on behalf of the Respondent Nos.1 to 7 at the outset pointed out that there is a clear non compliance of the provisions of Section 3 and 4 of the Contract Act and as such the resignation could not be construed to have been acted upon. Section 3 and 4 of the Contract Act,1872 read as under: Section 3 :- Communication, acceptance and revocation of proposals:- The communication of proposals, the acceptance of proposals, and the revocation of proposals and acceptances, respectively, are deemed to be made by any act or omission of the party proposing, accepting or revoking by which he intends to communicate such proposal, acceptance or revocation, or which has the effect of communicating it. Section 4 :- Communication when complete :- The communication of a proposal is complete when it comes to the knowledge of the person to whom it is made. . The communication of an acceptance is complete- as against the proposer, when it is put in a course of transmission to him, so as to be out of the power of the acceptor; as against the acceptor, when it comes to the knowledge of the proposer. The communication of a revocation is complete- as against the person who makes it, when it is put into a course of transmission to the person to whom it is made, so as to be out of the power of the person who makes it; as against the person to whom it is made, when it comes to his knowledge. 24. Thereafter Mr.Chagla, the learned Senior Counsel referred to a judgment of the Hon’ble Supreme Court in the case of Sheikh Abdul Kayum and Ors. Vs. Alibhai and Ors. AIR 1963 SCC 309, and emphasized on paragraph Nos.16 and 17, which read as under: 16. There cannot, in our opinion, be any doubt about the correctness of the legal position that trustees cannot transfer their duties, functions & powers to some other body of men and create them trustees in their own place unless this is clearly permitted by the trust deed or agreed to by the entire body of beneficiaries. There cannot, in our opinion, be any doubt about the correctness of the legal position that trustees cannot transfer their duties, functions & powers to some other body of men and create them trustees in their own place unless this is clearly permitted by the trust deed or agreed to by the entire body of beneficiaries. A person who is appointed a trustee is not bound to accept the trust; but having once entered upon the trust he cannot renounce the duties and liabilities except with the permission of the Court or with the consent of the beneficiaries or by the authority of the trust deed itself. Nor can a trustee delegate his office or any of his functions except in some specified cases. The rules against renunciation of the trust by a trustee and against delegation of his functions by a trustee are embodied, in respect of trusts to which the Indian Trusts Act applies, in Ss.46 and 47 of that Act. These sections run thus : 46. A trustee who has accepted the trust cannot afterwards renounce it except (a) with the permission of a principal Civil Court of Original Jurisdiction, or (b) if the beneficiary is competent to contract, with his consent, or (c) by virtue of a special power in the instrument of trust. 47. "A trustee cannot delegate his office or any of his duties either to a co-trustee or to a stranger, unless (a) the instrument of trust so provides, or (b) the delegation is in the regular course of business or (c) the delagation is necessary, or (d) the beneficiary, being competent to contract, consents to the delegation." 17. It is true that S.1 of the Indian Trusts Act makes provisions of the Act inapplicable to public or private religious or charitable endowments; and so, these sections may not in terms apply to the trust now in question. These sections however embody nothing more or less than the principles which have been applied to all trusts in all countries. The principle of the rule against delegation with which we are concerned in the present case, is clear; a fiduciary relationship having been created, it is against the interest of society in general that such relationship should be allowed to be terminated unilaterally. The principle of the rule against delegation with which we are concerned in the present case, is clear; a fiduciary relationship having been created, it is against the interest of society in general that such relationship should be allowed to be terminated unilaterally. That is why the law does not permit delegation by a trustee of his functions, except in cases of necessity or with the consent of the beneficiary or the authority of the trust deed itself; apart from delegation "in the regular course of business", that is, all such functions which a prudent man of business would ordinarily delegate in connection with his own affairs. 25. To contend that the aforesaid Respondents’ resignation could not be acted upon, he also brought to our notice a judgment of the Privy Council in the case of Lala Man Mohan Das Vs. Janki Prasad and Ors. AIF (32) 1945 Privy Council 23, especially page 28, which reads as under: "In the case of co-trustees the office is a joint one. Where the administration of the trust is vested in co-trustees, they all form as it were but one collective trustee, and therefore must execute the duties of the office in their joint capacity it is not uncommon to hear one of several trustees spoken of as the acting trustee, but the Court knows no such distinction; all who accept the office are in the eyes of the law acting trustees. If any one refuse or be incapable to join, it is not competent for the others to proceed without him, but the administration of the trust must in that case devolve upon the Court. however, the act of one trustee done with the sanction and approval of a co-trustee may be regarded as the act of both. But such sanction or approval must be strictly proved." Their Lordships consider this to be a correct statement of the law applicable in England and that the same doctrine applies in India also : SCC 19 C.W.N.260 2(15) AIR 1915 33 Cal.33. For these reasons, the mortgage deed is not binding on the trust estate. 26. Mr.Chagla, the learned Senior Counsel for the Respondent Nos.1 to 7 also referred to another judgment of the Hon’ble Supreme Court in Janakirama Iyer 633 Vs. Nilakanta Iyer, 1962 SC 633, especially paragraph No.19 and 21. Paragraph No.19 reads as under: 19. For these reasons, the mortgage deed is not binding on the trust estate. 26. Mr.Chagla, the learned Senior Counsel for the Respondent Nos.1 to 7 also referred to another judgment of the Hon’ble Supreme Court in Janakirama Iyer 633 Vs. Nilakanta Iyer, 1962 SC 633, especially paragraph No.19 and 21. Paragraph No.19 reads as under: 19. Lewin on "Trusts" has observed that "in the case of co-trustees the office is a joint one. Where the administration of the trust is vested in co-trustees they all form as it were but one collective trustee, and therefore must execute the duties of the office in their joint capacity. It is not uncommon to hear one of several trustees spoken of as the acting trustee but the Court knows no such distinction; all who accept the office are in the eye of the law acting trustees. If anyone refuses or be incapable to join, it is not competent for the others to proceed without him, but the administration of the trust must in that case devolve upon the Court. However, the act of one trustee done with the sanction and approval of a co-trustee may be regarded as the act of both. But such sanction or approval must be strictly proved." .......................................... ................................................. Paragraph No.21 reads as under: 21......................................... It is not necessary under the clause that in the matter of executing the trust every decision must be unanimous. The clause recognises that in some matters decision may be by majority; but nevertheless it requires that once a decision is reached either unanimously or by majority, in giving effect to the decision and in taking any given action in the execution of the trust all the three must act. Thus read this clause conforms to the statutory provisions contained in S.48 of the Indian Trusts Act and is not intended to provide for an exception to the e said provisions at all. ....................................................................................... 27. Mr.Chagla, the learned Senior Counsel pointed that under Clause 39 of the scheme, it is explicitly clear that the resignation can only take effect from the date of the receipt of the letter of resignation by all the Trustees. In the instant case, obviously resignation letters were not addressed to all the Trustees and hence they cannot be construed as effective resignation in law. In the instant case, obviously resignation letters were not addressed to all the Trustees and hence they cannot be construed as effective resignation in law. He pointed out from the record that the resignation letter has been addressed only to one trustee and not all, and in fact the copy of the resignation letter was not even forwarded to other trustees. He also pointed that the same is not even addressed to Respondent No.3. He also emphasised that Chairman also is only a Trustee and nothing more. 28. He pointed out that as per Section 47 of the Bombay Public Trusts Act, Clause (e) emphasizes if any Trustee desires of getting discharged, he ought to have move the Charity Commissioner in the event Trust Deed does not provide so. Mr.Chagla, the learned Senior Counsel further contended that if the contention of Dr.Tulzapurkar, the learned Senior Counsel for the Appellants were to be accepted that the Trust Deed do not provide for any resignation in that event the only recourse for the trustee to approach the Charity Commissioner to get discharged from the Trust. Finally, Mr.Chagla, the learned Senior Counsel also referred to the judgment of the Justice Blagdon of this Court, dated 12th June, 1944. 29. In the above, one has to consider that it is not a case of resignation of a Director of a company or resignation of office bearer society and/or association. Mr.Chagla pointed out that a Trustee holds his position in confidence and for the benefit of the beneficiaries as has been held by the Hon’ble Supreme Court in the case of Sheikh Abdul Kayum and Ors. Vs. Alibhai and Ors. AIR 1963 SCC 309, held that the Trustees cannot be allowed just to walk away unilaterally and especially when he is looking after the benefit of the beneficiaries and they ought not to be allowed merely to submit a resignation and relive their responsibilities. Mr.Chagla emphasized holding that in the instant case the Trustees were holding very important post and for the benefit of the members of the Parsi Community and in any event, he strongly submitted that the resignations purported to have been submitted is not at all valid in the eye of law or effective in law and as such there was no valid resignation. If that be so, all the aforesaid Respondents continued to be the Trustees in the above Trust. If that be so, all the aforesaid Respondents continued to be the Trustees in the above Trust. Therefore, Mr.Chagla contended that the judgment of the learned Single Judge is fully justified and there is no case made out for interference by this Court. 30. After having considered the arguments of the learned Single Judge of both the sides, the basic issues which are required to be considered in this Appeal is whether the resignations of Respondent Nos.3,4 and 5 were addressed to all the Trustees and whether they were received by all the Trustees?. Similarly, even the resignation of Respondent No.2, whether it was addressed to all the Trustees and whether they were received by all the Trustees ? Since the issue is that under the Scheme, whether the letters of resignations were strictly in accordance with the mandate prescribed under Clause 39 of the Scheme. Another issue is whether a Chairman could act on behalf of the Trustees and the scheme does not contemplate any special powers conferred on the Chairman. Whether the receipt of resignation, or letters of resignation can by only through on a knowledge from a newspapers or other publication or whether it has to be actually received. 31. After having heard the learned Senor Counsel for both the parties, we agree with the contention of Mr.Chagla that there is a clear non compliance of Section 3 and 4 of the Indian Contract Act that is to say that with that non compliance there cannot be a valid resignation in law. 32. Admittedly, in the above case, the resignations of Respondent Nos.3,4,5 as well as Respondent No.2 were not addressed to all the Trustees and also they were not physically received by all the Trustees. One has to remember, in the case of public Trust, the provisions of the Scheme will have to be strictly construed since the Trustees are acting on behalf of the beneficiaries, for their benefit, and they cannot be allowed to be relieved unilaterally. 33. One has to remember, in the case of public Trust, the provisions of the Scheme will have to be strictly construed since the Trustees are acting on behalf of the beneficiaries, for their benefit, and they cannot be allowed to be relieved unilaterally. 33. In that context, it is very relevant to note the observations of the Hon’ble Supreme Court in the case of Trustees involved in the Trust in Sheikh Abdul Kayum and Ors.(Supra) referred to hereinabove, wherein it is categorically mentioned that the person was appointed as a Trustee, once having entered upon the Trust, he cannot renounce the duties and liabilities except with the permission of the Court or with the consent of the beneficiaries or by the authority of the Trust Deed itself. In the instant case, there is no case that the beneficiaries had accepted the resignation or that the Court had granted permission therefore, we will have to construe the clause in the Trust Scheme strictly and find out whether there is a non compliance of the same. As pointed out hereinabove, that the resignation letters were not addressed to all the Trustees and also they were not physically received by all the Trustees. Therefore, from the above it is clear that there is clear non compliance of Clause 39 of the Scheme and if that be so, the resignation could not have taken effect in law as they were not received by all the Trustees. There is also no dispute that in the instant case, the resignation letters were not addressed to all the Trustees and as such they cannot be construed as an effective resignation in law. In fact, in reality, the resignation letters were addressed to only one Trustee and not all the Trustees and they were not even forwarded to all the Trustees. Mr.Chagla is right that the resignation letters were not even addressed to Respondent No.3 in the above. Therefore we are clearly of the view that the said purported resignation is clearly not effective in law and runs counter to the principles laid down in Sheikh Abdul Kayum Supra) and Ors.(Supra). Mr.Chagla is right that the resignation letters were not even addressed to Respondent No.3 in the above. Therefore we are clearly of the view that the said purported resignation is clearly not effective in law and runs counter to the principles laid down in Sheikh Abdul Kayum Supra) and Ors.(Supra). As well as it runs counter to the judgment of the Privy Council in Lala Man Mohan Das Supra.) (Supra.), wherein it is clearly held that in case of Trustees the all acts are of co-trustees and the office is joint one and the administration of the Trust is vested in co-trustees and they all form as collective trustees they will have to act jointly. 34. Similarly, even in the well known book of Lewin on "Trust", it is clearly mentioned in the case of co-trustees, the office is joint one where the trust of office of the said vested in co-trustee they all form as it if were one collective trust. It is uncommon to hear that one of the several trustees to act as a Trustee it has to be a joint one. 35. In the above, Mr.Chagla is right that there is clear non compliance of Section 3 and 4 of the Indian Contract Act which also renders the above resignation ineffective in law. What we are concerned with the above is whether there is a valid resignation effective in the eye of law and the entire argument of Dr.Tulzapurkar is factually the trustees had tendered resignation and factually had withdrawn their resignation is of no consequence. What we are concerned with is whether the purported resignation letters of Respondent Nos.3 to 5 as well as Respondent No.2 could be construed to be effective and valid resignation in the eye of law and strictly in consonance with the scheme of the trust. We find that from the facts and circumstances set out hereinabove, the resignations of Respondent Nos.2 to 5 are not effective and valid in the eye of law and they cannot be sustained. Admittedly, in this case, these resignations were not approved by the beneficiaries of the trust. Similarly, these resignations were not sanctioned with the approval of the Court and they are strictly not in accordance the scheme of the Trust deed and hence they cannot be treated as a resignations effective in law. If that be so, the Trustees continue in their office. Similarly, these resignations were not sanctioned with the approval of the Court and they are strictly not in accordance the scheme of the Trust deed and hence they cannot be treated as a resignations effective in law. If that be so, the Trustees continue in their office. 36. The judgments cited by Dr.Tulzapurkar in the case of Union of India Vs Gopal Chandra Misra (Supra), as well as Supreme Court in the case of Moti Ram Vs. Param Dev (Supra), do not deal with the case of Public Trust. In the case of resignation of a Director of a Company or a resignation of a partner of a Partnership Firm or resignation of a member or a an Office Bearer of an Association stand totally on a different footing whereas the resignation of Trustees of a Public Trust stand on a different footing altogether. The main reason is found in the judgment of the Hon’ble Supreme Court in Supra) Sheikh Abdul Kayum and Ors.(Supra), wherein in no uncertain terms observed that a person appointed as a trustee is not bound to accept the trust but once having entered upon the trust, he cannot renounce the duties and liabilities except with the permission of the Court or with the consent of the beneficiaries or by the authority of the Trust Deed. In the instant case, as we are clearly of the view that the resignations are not in consonance with the scheme of the Trust, the resignations cannot be treated as valid in law. 37. Over and above, even the resignations are clearly contrary to the scheme as approved by the Justice Blagdon by his order dated 12th June, 1944 in Miscellaneous Petition No.73 of 1944. 38. Having regard to the facts and circumstances of the case, we are clearly of the view that there is no error or illegality committed by the learned single Judge in the impugned judgment. Under the aforesaid facts and circumstances of the case, we find no substance in the above Appeal. The Appeal stands dismissed however, with no order as to costs.