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Ram Charan Agarwala and ors. Vs. Shridhar Misra and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtAllahabad High Court
Decided On
Case NumberSpecial Appeal No. 471 of 1958
Judge
Reported inAIR1962All610
ActsSocieties Registration Act, 1860 - Sections 1, 2, 12 and 20; Code of Civil Procedure (CPC) , 1908 - Sections 9 - Order 40, Rule 1
AppellantRam Charan Agarwala and ors.
RespondentShridhar Misra and ors.
Appellant AdvocateS.N. Kakkar and ;A.P. Pandey, Advs.
Respondent AdvocateR.S. Pathak, Adv.
Excerpt:
(i) trust and societies - interpretation - sections 12, 1, and 2 of societies registration act, 1860 - words 'purposes' and 'objects' in the act have been used synonymously - provisions have been made for public interest - held, the provisions are mandatory and not directory and its disregard is not a mere irregularity. (ii) amendment of rules of society - section 9 of code of civil procedure, 1908 - rule in constitution of a society allows general body to amend or change the constitution rules - general body delegates the power to a committee - constitution framed and passed by committee in contravention of the mandatory rules held to be invalid and ineffective. (iii) receiver - order 40 rule 1 of code of civil procedure,1908 - the office of receiver does come to an end by efflux of.....jagdish sahai, j. 1. these four connected appeals are directed against the decree passed by our brother oak in exercise of the original civil jurisdiction of this court in three consolidated suits. the three suits relate to the hindi sahitya sammelan which is a body registered under the societies registration act (no. xxi of 1860) and is hereinafter referred to as the sammelan. it was constituted several decades ago for the purpose of promoting hindi language and to develop hindi literature. in the year 1946 certain rules were framed for the management of the affairs of the sammelan. with the prospects of hindi being recognised as the national language of india in the constitution it was felt by a large section of the sammelan that it had become necessary to introduce fundamental changes.....
Judgment:

Jagdish Sahai, J.

1. These four connected appeals are directed against the decree passed by our brother Oak in exercise of the original civil jurisdiction of this Court in three consolidated suits. The three suits relate to the Hindi Sahitya Sammelan which is a body registered under the Societies Registration Act (No. XXI of 1860) and is hereinafter referred to as the Sammelan. It was constituted several decades ago for the purpose of promoting Hindi language and to develop Hindi literature. In the year 1946 certain rules were framed for the management of the affairs of the Sammelan. With the prospects of Hindi being recognised as the national language of India in the Constitution it was felt by a large section of the Sammelan that it had become necessary to introduce fundamental changes In the objects, programme and the constitution of the Sammelan. The annual session of the Sammelan for the year 1949 was held in December of that year at Hyderabad and there a resolution was passed appointing a committee of twenty one members for drafting a new constitution or set of rules for the Sammelan in order to make it fully representative of all the Hindi regions of the country. The resolution inter alia provided that the new constitution after being drafted should be placed for approval before a special session of the Sammelan. It is the common case of the parties that the committee of 21 persons mentioned above (hereinafter referred to as the first committee) drafted a constitution and the said draft was placed for approval before the special session of the Sammelan convened at Patna in June 1950 but for certain reasons the same could not be passed in that session. Instead, resolution No. 1 was passed appointing another committee of cloven persons (hereinbelow referred to as the second committee) for drafting a new constitution and one in fact was drafted by the second Committee. The next session of the Sammelan was held at Kotah in December 1950 under the presidentship of Sri Jaichand Vidyalankar and though it was intended to put before the delegates assembled there the draft prepared by the second committee it could not be so done as the draft became un-traceable. The Kotah session thereupon passed resolution No. 11 which is to the effect that new constitution be prepared by the second committee and the same when drafted would be deemed to have been adopted by the Sammelan if and when it was signed by eight out of eleven members of the committee. The second committee-drafted another constitution and by the 10th August 1951 seven of its members signed it. As signatures of eight or, more than eight members were required to enforce the constitution Sri Mauli Chandra Sharma who was the convener of the committee called a meeting for 28th of August 1951 at Allahabad for the consideration of the new constitution (referred to in this judgment as new rules also) but before the meeting could be held one of the members of the second committee appended his signature to the draft constitution on 11th of August 1951 thus making the number of the signatories to that constitution as eight. Thereafter some of the members of the Sammelan took up the stand that the new constitution had come into force as it had been signed by eight persons. On 28-8-1951 Sri Sridhar Misra and two others filed civil suit No. 567 of 1951 in the court of Munsif (West) Allahabad against Sri Jaichand Vidyalankar and eleven other inter alia on the allegations that the resolution No. 1 passed at Patna Special Session and resolution No. 11 passed at the Kotah session were ultra vires and inoperative and the new constitution was invalid. The relief claimed in the suit was for a declaration that the resolutions mentioned above and the new constitution were ultra vires the Sammelan and were full and void and further that the constitution drafted by the first committee and placed before the Patna session was the valid constitution. A prayer was also made for a permanent injunction restraining the members of the second committee from meeting on 28-8-1951 and from approving the draft constitution as also from giving effect to it. This suit was contested by the defendant No. 2 Sri Rai Ram Charan Agarwal and the defendant No. 7 Sri Mauli Chandra Sharma who pleaded inter alia that the new constitution was a valid one and in any case the Sammelan being on autonomous body no suit in respect of its internal management was maintainable at the instance of the plaintiffs and further that the plaint was undervalued and the court-fee paid was insufficient. A claim for special costs under Section 35A, C. P. C., was also made. The learned Munsif framed the following issues in the case :

1. Are resolutions Nos. 1 and 11 of Patna session and Kotah Session respectively, and draft constitution framed by defendants Nos. 2 to 12 ultra vires of the Sammelan and null and void?

2. Has this Court jurisdiction to try the suit?

3. Have plaintiffs any interest in the management of the affairs of defendant No. 13 Have the plaintiffs any right to maintain the suit?

4. Is the valuation given in the plaint under-valued and indefinite? Is the court-fee paid insufficient?

5. To what compensation, if any, is defendant No. 2 entitled under Section 35A, C. P. C.?

6. To what relief, if any, are plaintiffs entitled?

2. On 6-9-1951 the Sammelan through its Secretary Sri Rai Ram Charan Agarwal filed in the nature of a cross case to suit No. 567 of 1951, civil suit No. 604 of 1951 in the court of the Munsif (West) Allahabad against Sri Jaichand Vidyalankar inter alia on the allegations that the new constitution had come into force on 11-84951 and the defendant had wrongly called a meeting for 9-9-1951 of the old standing committee of the Sammelan to consider the question relating to the acceptance or non-acceptance of the new constitution. The relief, claimed in the suit was a declaration that the office-bearers of the Sammelan were bound by the new constitution approved on 11-84951. There was also a prayer for an injunction restraining the defendant from holding the proposed meeting or acting in accordance with the old constitution (also referred to by me as the old rules). The suit was contested inter alia on the allegation that the constitution prepared for being presented and passed at Patna special session had been traced out and was in possession of the defendant and further that resolution No. 1 passed at the Patna session and No. 11 passed at the Kotah session were ultra vires the Sammelan. The following issues were framed in the case :

(1) Whether the new constitution prepared approved and signed on 11-8-1951 is valid?

(2) To what relief, if any, are the plaintiffs entitled?

3. In this suit the plaintiffs obtained from the learned Munsif (West) Allahabad a temporary injunction restraining the President of the Sammelan from considering matters relating to the conduct of the affairs of the Sammelan and the new constitution. Notwithstanding the injunction the meeting called for 9-94951 was held on that date though the President absented himself from it. In this meeting a resolution was passed removing Sri Rai Ram Charan Agarwal from the post of the Secretary of the Sammelan and electing new office-bearers.

4. On the 10-9-1951 civil suit No. 75 of 1951 was filed by the Sammelan through Sri Rai Ram Charan Agarwal, its secretary, and Sri Rai Ram Charan Agarwal in his personal capacity in the court of the Civil Judge, Allahabad against Sri Jaichand Vidyalankar and seven others inter alia on the allegations that the defendants and their partymen had illegally decided to declare the new constitution null and void and thus to bring the plaintiff No. 2 in dispute, that the defendant No. 1 had decided to call a meeting of the old standing committee of the Sammelan on 9-94951 to consider the questions relating to the conduct of the plaintiff No. 2, the newly prepared constitution and other matters relating to it and had quite illegally removed plaintiff No. 2 from the office of the General Secretary and elected new office-bearers. The prayer in the suit was that the proceedings held in the meeting of 9-9-1951 affecting the position of the plaintiff No. 2 Sri Rai Ram Charan Agarwal and appointing new office-bearers in place of the old ones be declared ultra vires and null and void. A prayer was also made for an injunction restraining the defendants from giving effect to the resolution passed In the meeting held on 9-94951. When the suit was filed there were eight defendants to it. Later on additions were made and ultimately as many as 186 persons were impleaded as defendants. In this suit one written statement was filed by Sri Jaichand Vidyalankar, defendant No. 1, another by Sita Ram Chaturvedi, defendant No. 4 and the third one by Sri Prabhat Misra, defendant No. 8 and five other defendants. The pleas in all the three written statements inter alia were that the resolution passed on 9-94951 was valid and effective and that the standing committee was competent to appoint and remove office-bearers, that inasmuch as the suit related to the internal management of the Sammelan it was incompetent, that the same was barred by Section 9, C. P. C. as also Section 42, Specific Relief Act, that the plaintiff No. 1 was not properly represented in the suit that the plaintiff No. 2 was not entitled to maintain it. The following issues were framed in the suit :

1. Whether the resolution of Sthai Committee passed on 9-94951 affecting the position of plaintiff No. 2 and appointing new office-bearers in place of old ones is ultra vires and null and void?

2. Is plaintiff No. 1 properly represented for filing this suit?

3. Is plaintiff No. 2 entitled to file this suit?

4. Is the suit barred by Section 9, C. P.C. and Section 42, Specific Relief Act?

5. Has the court no power to entertain the suit as framed?

6. To what relief, if any, are the plaintiffs entitled?

5. On 25-104951 the learned Civil Judge, Allahabad appointed Sri Jagdish Swarup, Advocate of this Court, as receiver of the property belonging to the Sammelan and thereafter Sri Jagdish Swarup has been looking after its affairs.

6. This Court withdrew all the three suits mentioned above to its own file for purposes of disposal and renumbered them. Suit No. 567 of 1951 was numbered as suit No. 1 of 1956, No. 604 of 1951 was numbered as suit No. 2 of 1956, No. 75 of 1951 as No. 3 of 1956 in this Court. The three suits were consolidated with the consent of the parties and were disposed of by one judgment dated the 14th of October 1958 by our brother Oak. Issue No. 1 in suit No. 1 of 1956 was answered by him by saying that the constitution prepared in August 1951 was invalid. Perhaps this finding has been too widely stated by our brother because a reference to his finding on issue No. 3 would show that he only found that Rule 2 of the new constitution was void and the other rules In it ware valid. Therefore, the result of reading the findings of Oak, J. on issues Nos. 1 and 3 together is that it is only Rule 2 of the new constitution which he has found to be invalid. On issue No. 3 his finding was that the suit with regard to the declaration about the invalidity of Rule 2 of the new constitution was maintainable but not with regard to the other rules In the constitution. Issue No. 4 he answered against the defendants by holding that the suit had not been undervalued and the court-fee paid was sufficient. Issue No. 5 he answered by saying that the defendant No. 2 was not entitled to any compensation under Section 35A, C. P. C. After recording these findings our brother Oak decreed the suit in part and granted an injunction prohibiting the enforcement of that part of the new constitution which ha had found to have been framed illegally.

7. The learned single Judge answered issue No. 1 of suit No. 2 of 1956 by saying that the new constitution was invalid. He answered issue No. 2 by saying that the plaintiffs were not entitled to any relief.

8. In suit No. 3 the learned single Judge answered, Issue No. 1 against the plaintiffs. On issue No. 2 ha found that the plaintiff No. 1 was properly represented in the suit. Issue No. 3 he answered by saying that the plaintiff No. 2 was entitled to file the suit but subject to his findings on issue No. 5. Issue No. 4 was not pressed before him. He however held on this issue that the suit was not barred either by Section 9, C. P. C., or by Section 42, Specific Relief Act. Issue No. 5 he found against the plaintiffs by holding that the civil court 'ought not to have entertained this suit'. On issue No. 6 he recorded the finding that the plaintiffs are not entitled to any relief. The learned single Judge in the end directed Sri Jagdish Swarup, the official receiver, to hand over charge of the properties belonging to the Sammelan to Sri Jaichand Vidyalankar who was its President in 1951.

9. To sum up, the learned single Judge dismissed suits Nos. 2 and 3 of 1956 in toto but decreed suit No. 1 of 195S partly. He declared resolution No. 1 of Patna session and resolution No. 11 of Kotah Session and also the new constitution in so far as the amendment of the objects or purposes (Uddesh) was concerned as invalid. He also directed the defendants 'not to give effect to ft. 2 of the new constitution until the objects or purposes (Uddesh) are amended by the Sammelan in accordance with law'.

10. Special Appeals Nos. 471 of 1958 and 576 of 1958 arise out of suit No. 1 of 1956. The first one has been filed by Rai Ram Charan Agarwal and Sarvasrj Purshottam Das Tandon, Ram Briksha Benipuri, Uma Nath, Mauli Chandra Sharma, Bhadant Anand Kaushalyayan and Hindi Sahitya Sammelan through Rai Ram Charan Agarwal Its secretary against Sarvasri Shridhar Misra, Ram Nagina Tripathi, Krishna Narain Lal, Jaichand Vidylankar, Kanhaiya Lal Misra, Prabhat Misra, Krishna Devea Prasad Gaur and Ram Nath Suman and the second one by Sarvasri Sridhar Misra, Ram Nagina Tripathi, Krishna Narain Lal, Jaichand Vidyalankar, Kanhalya Lal Misra, Prabhat Misra, Krishna Deva Prasad Gaur and Ram Nath Suman against Sarvasri Rai Ram Charan Agarwal, Pursnotam Das Tandon, Ram Krishna Benipuri, Uma Nath, Mauli Chandra Sharma, Bhadant Anand Kaushalyayan and the Hindi Sahitya Sammelan through Rai Ram Charan Agarwal, its secretary. Special Appeal No. 472 of 1958 had been filed by the Hindi Sahitya Sammelan through its secretary Rai Ram Charan Agarwal, Rai Ram Charan Agarwal and Sri Purshotam Das Tandon alias Raja Munua against Sarvasri Jaichand Vidyalankar, Krishna Deva Prasad Gaur, Ramnath Suman, Sitaram. Chaturvedi, Lakshmi Narain Misra, Rajendra Singh Gaur, Mahesh Datt Misra and Prabhat Misra in suit No. 3 of 1956. Special Appeal No. 473 of 1958 has been filed by the Hindi Sahitya Sammelan through its secretary Rai Ram Charan Agarwal and Sri Purshotam Das Tandon alias Raja Munua against Sri Jaichand Vidyalankar in original suit No. 2 of 1956.

11. All the four appeals were listed together before us. In Sp. A. No. 471 of 1958 which has been filed by the defendants the prayer in effect is that suit No. 1 be dismissed in toto, while in Special Appeal No. 576 of 1958 filed by the plaintiffs and some of the defendants the prayer in effect is that the suit should be decreed in toto and even with regard to rules, other than Rule 2 of the new constitution, a declaration should be given that the same are invalid and void. Special Appeal No. 472 of 1958 has been filed by the plaintiffs and their virtual prayer is that suit No. 3 of 1956 be decreed and a declaration be given that the proceedings in the meeting held on 9-9-1951 are ultra vires and so is the election of the new office-bearers in place of the old ones. Special Appeal No. 473 of 1958 has also been filed by the plaintiffs and the prayer in effect is that suit No. 2 of 1956 be decreed in toto and a declaration be given that the office bearers of the Sammelan are bound by the new constitution and further that an injunction be issued restraining the defendant from acting in accordance with the old constitution. Both in Sp. A. Nos. 472 and 473 there is also a ground that, in any case, that part of the decree of the learned Single Judge which directs the receiver, Sri Jagdish Swarup, to handover charge to Sri Jaichand Vidyalankar, be set aside.

12. Mr. R.S. Pathak has appeared before us on behalf of the appellants in Special Appeal No. 576 of 1958 and on behalf of the respondents in the other appeals. Mr. S.N. Kakkar has appeared for the appellants in Special Appeals Nos. 471, 472 and 473 of 1958. We will first take Special Appeals Nos. 471 and 576 of 1958. Mr. Kakkar has challenged the findings of the learned Single Judge to the effect that Rule 2 of the new constitution was void and has contended that in the present case there was no application of Section 12 of the Societies Registration Act (hereinafter called the Act) and Rule 46 of the old constitution was also not violated. Mr. Pathak's submission on the other hand is that Section 12 of the Act applied to the facts of the present case and that in fact the effect of Rule 2 of the new constitution is that the purpose for which the Sammelan was constituted and registered under the Act has been changed. Section 12 of the Act reads as follows :

'Whenever it shall appear to the governing body of any society registered under this Act, which has been established for any particular purpose or purposes, that it is advisable to alter, extend, or abridge such purpose to or for other purposes within the meaning of this Act, or to amalgamate such society either wholly or partially with any other society such governing body may submit the proposition to the members of the society in a written or printed report and may convene a special meeting for the consideration thereof according to the regulations f, the society; but no such purpose shall be carried Into effect unless such report shall have been delivered or sent by post to every member of the society ten days previous to the special meeting convened by the governing body for the consideration thereof, nor unless such purpose shall have been agreed to by the votes of three-fifths of the members delivered in person or by proxy, and confirmed by the votes of three-fifths of the members present at a second special meeting convened by the governing body at an interval of one month after the formal meeting.'

13. It is the common case of the parties that in the instant case the procedure contemplated by Section 12 of the Act has not been followed. The point, therefore, that requires determination is whether there has been any change of purpose of the Sammelan within the meaning of Section 12 of the Act because of the framing of Rule 2 of the new constitution and whether Section 12 of the Act is merely directory and not mandatory and consequently its disregard would not affect the validity of Rule 2 of the new constitution. We shall first deal with the question whether Section 12 is mandatory or merely directory. Though the word 'shall' occurring in Section 12 is not conclusive of the section being mandatory, it is highly suggestive of its being so. In the case of Bhanwari Lal Agarwala v. State of Bihar : (1961)IILLJ140SC their Lordships held as follows :

'No general rule can be laid down for deciding whether any particular provision in a statute is mandatory, meaning thereby that non-observance thereof involves the consequence of invalidity, or only directory, i. e. a direction the non-observance of which would invalidate, whatever consequences may occur. In order to decide as to whether a provision is mandatory or directory a court has to consider not only the actual words used but the scheme of the statute, the intended benefit to public of what is enjoined by the provisions and the material danger to the public by the contravention of the same'.

14. The same view was taken by their Lordships in the case of Drigraj Kuer v. A.K. Narain Singh : [1960]2SCR431 and Hari Vishnu Kamath v. Ahmad ishaque : [1955]1SCR1104 . Section 13 of the Act provides that the concurrence of three-fifths of its members is required for the dissolution of a society registered under the Act and if the Government happened to be a member of the society, its consent has also got to be obtained. Section 14 provides that in case of dissolution of the society its funds are not to be distributed between its members but are to be given to some other society to be determined by the votes of not less than three-fifths of the members present personally or by proxy at the time of the dissolution, or, in default thereof, by a court, these provisions indicate that once a society is formed it should continue and neither its dissolution nor the change of its purposes can be lightly made. Section 17 of the Act provides that even in case of societies which were established before the Act came into force assent of three-fifths of its members has got to be given for purpose of its being registered under the Act This would show that there is an insistence on the part of the legislature on a majority of three-fifths in respect of all fundamental changes with regard to a society. These provisions, it appears to us, have been framed for public benefit and it is obvious that their contravention is likely to endanger public interest. For these reasons we are of the opinion that the provisions of Section 12 of the Act are mandatory and not merely directory.

15. It was vehemently argued that there is a difference between 'objects' and' 'purposes' of a society and it was contended that Section 12 would apply when a change in the purposes was sought and not when a mere change in the objects was attempted. In our judgment there is no difference between 'purposes' and 'objects' in the Act. This is made clear by the provisions of Sections 2 and 18 of the Act. Section 2 provides that the memorandum of association shall contain the following things, that is to say--the name of the society; the objects of the society; the names, addresses, and occupations of the governors, council, directors, committee, or other governing body to whom, by the rules of the society the management of its affairs is entrusted. It is obvious that the words 'objects of the society' have been used here in the sense of 'purpose'. Section 18 provides that if any society which was established before the Act came into existence wants to get, registered it must file with the Registrar of Joint stock Companies a memorandum showing the name of the society, the object of the society and the names, addresses and occupations of the governing body together with a copy of the rules and regulations of the society certified as provided in Section 2, and a copy of the report of the proceedings of the general meeting at which the registration was resolved on. The word used in Section 18 is not 'purpose' but 'object'. Section 1 does not speak of object but of purpose. It is however obvious that the two words describe the same thing. In our opinion therefore, the word 'purpose' or 'object' in the Act has been used synonymously and if Section 12 otherwise applies to the present case, it cannot be made inapplicable on the ground that the words used therein are 'purpose' or 'purposes' and not 'object' or 'objects'. It was also contended that Section 12 relates to a change sought to be introduced by the governing body and not to a change or amendment sought to be made by the general body of the delegates assembled at a session of the Sammelan. Section 16 of the Act provides that the governing body of the society shall be the governors, council, directors, committee, trustees or other body to whom by the rules and regulations of the society the management of its affairs is entrusted. The definition is comprehensive enough to include the standing committee as also the general body of delegates assembled at a session of the Sammelan inasmuch as to both of them in their own spheres the management of the affairs of the Sammelan is entrusted by the rules. The general body has an overall control over the management of the affairs of the Sammelan and is alone competent under Rule 46 of the old rules to amend or alter the rules. For these reasons it must be held that the general body of the Sammelan is included in the expression 'governing body' occurring in Section 12 of the Act.

16. Before we decide as to whether or not the 'object' or 'purpose' of the society of the Sammelan has been changed, it would first be necessary to consider as to what does the word 'purpose' mean. That word has not been defined in the Act. Section 1 of the Act, however uses the word 'purpose' and provides that--any seven or more persons associated for any literary, scientific, or charitable purpose, or for any such purpose as is described in Section 20 of this Act, may, by subscribing their names to a memorandum of association, and filing the same with the Registrar of Joint-stock Companies, form themselves into a society under this Act. Here the word 'purpose' has been used in a very wide sense. If a literary society is established to promote literature it is founded for a literary purpose. Similarly if a scientific or charitable society is founded, it is established for scientific or charitable purpose. 'Purpose' has been used here in the sense of the main object. It has got nothing to do with the details of the programme of the society or with its activities. The society may draw out a chart of its activities and prepare a programme for its working but that would not be the 'purpose' contemplated by the Act Section 20 of the Act reads as follows:

'The following societies may be registered under this Act: Charitable societies, the military orphan funds or societies established at the several presidencies of India, societies established for the promotion of science, literature, or the fine arts, for Instruction, the diffusion of useful knowledge, the diffusion of political education, the foundation or maintenance of libraries or reading-rooms for general use among the members or open to the public, or public museums and galleries of paintings and ether works of art, collections of natural history, mechanical and philosophical inventions, instruments, or designs.' This section would also show that the word 'purpose' used therein has been used in a wide or comprehensive sense, that is, in the sense of the main object or the central aim of the society as distinguished from its detailed activities which will naturally be directed towards the attainment of that object. If a society is founded for purposes of promotion of literature, it may, in its rules, provide for variety of activities; as for example, for giving scholarships to deserving students, having a press and a publicity department, having an organisational wing, or for holding essay competitions, or awarding prizes for best books, or for holding annual sessions and conferences or for popularising Hindi language in foreign countries and so on and so forth. These are all the activities or the programme of the society and should not be confused with its purpose. Purpose means the fundamental principles upon which the association was formed and the trust created (see Milligan v. Mitchell, (1837) 40 ER 852).

In the Oxford Shorter Dictionary the word 'purpose' has been given the following meaning:

'The object which one has in view; intention, resolution, determination; the object for which anything is done or made, or for which it exists; end, aim.'

In Ramanatha Iyer's Law Lexicon it has been stated:

'The word purpose means that which a person sets before himself as an object to be reached or accomplished; the aim or end to which the view is directed in any plan, manner, or execution; end or the view itself, design, intention.' (See page 1053).

17. In the present case the Sammelan has one aim or purpose, that is, the promotion of Hindi literature and language . In order to achieve this main aim or purpose, it has out of necessity to have subsidiary aims and has to provide spheres in which the work of the Sammelan has got to be carried on in order to achieve the purpose. What was described in Rule 2 of the old rules or in Rule 2 of the new rules is not the purpose or the main aim but the subsidiary aims, that is, the various activities which the Sammelan wishes to pursue for the achievement of the main aim. Most of the activities in the two rules are common. There has been slight change in other activities but that change is not of a fundamental nature. It is true that Rule 2 of both the new as also the old sets of rules is headed as 'Uddesha'. In our opinion the word 'Uddesha' has not been used in the same sense in which the word 'purpose' has been used in Sections 1 and 12 of the Act. Whereas the word 'purpose' has been used in those sections in the sense of the general objects for which the society has been established, the word 'Uddesha' in the rules has been used in the sense of more proximate objectives which are sought to be achieved or the targets which are intended to be hit in the fulfilment of the fundamental purpose or principles of association.

18. The learned Single Judge held that inasmuch as under Rule 2 (a) of the old constitution the purpose of the Sammelan was 'to endeavour for the development and progress of Hindi literature in all its aspects' and the object and purpose of Rule 2 (1) of the new constitution is 'to endeavour constantly for cultural rise of India through development of Hindi language and literature,' there has been a distinct departure from the purpose and object of the Sammelan and further that in so far as the same was brought about without following the provisions of Section 12 of the Act, Rule 2 of the new constitution was invalid. With great respect to our learned brother Oak, we find it difficult to share this view. We have already said that there is a difference between purposes and objects on the one hand, and the detailed programme of the activities of a society or the targets which it wishes to hit in order to achieve the purpose on the other. In coming to this conclusion we have been influenced to some extent by the language of Section 2 of the Act The last line, of that section read as follows:

'A copy of the rules and regulations of the society, certified to be a correct copy by not less than three of the members of the governing body, shall be filed with the memorandum of association.'

That section which has already been quoted in an earlier part of this judgment clearly requires that the memorandum of association shall contain the objects of the society. The last lines of this section provide that along with the memorandum of association a copy of the rules and regulations of the society shall be filed. This indicates that the place for the mention, of the purpose of a society is the memorandum of association and not the rules. The rules may be a body of provisions framed for the governance of a society but should not be confused with the memorandum of association and it should not be forgotten that it is not the rules but the memorandum of association in which the purposes of the society are embodied. In other words the purpose or object contemplated by Section 12 of the Act, is the purpose mentioned in Section 1 and the object mentioned in Section 2 of the Act.

19. Inasmuch as the memorandum of association not having been filed in this case, is not before us, we do not know what was the purpose for which the Sammelan was established. There is no other document also from which we may gather with any amount of certainty the purpose for which the founders of the Sammelan associated to establish it. Admittedly the Sammelan was founded long before September 1946. The rules (Niyamawali) passed at the Udaipur session of the Sammelan on 11/12 August and 8th September 1946 is not the memorandum of association. There is no reason to suppose that rule 2 of the old constitution is a copy of the purposes set forth in the memorandum of association. We cannot, therefore, be sure that by means of the new constitution the purpose for which the Sammelan was originally formed has been changed. Assuming that Rule 2 of the old constitution dealt with the 'purpose' of the society (Sammelan) it cannot be said that there is such a difference between that rule and Rule 2(1) of the new constitution so as to justify the conclusion that the purpose for which the Sammelan was formed has been changed. Even Rule 2(1) of the new constitution puts as the object of the society 'the development of Hindi language and literature in all its aspects.' The only difference between the two rules is that in Rule 2 of the old constitution the purpose is 'development and progress of Hindi literature in all its aspects,' in Rule 2 of the new constitution the development of Hindi language and literature is to be achieved with a view to bring about the cultural rise of India. It is trite that development of the language or literature will be simultaneous with the cultural rise of the region or the State or the nation in which that language is used. The two are bound to proceed side by side. It appears to us that even under Rule 2(a) of the old constitution the efforts of the Sammelan in developing Hindi literature would have resulted in the cultural rise of India specially when Hindi has been accepted as the national language of the country. The cultural rise of a country includes the development and progress of its language and literature. The new Rule 2(a) cannot therefore be held to have introduced any fundamental change. It has only brought out what was inherent in the old Rule 2. Our brother Oak also agreed that the idea of development of Hindi literature is common to both the constitutions, but held that a change of purpose had been brought about because he thought that there was a change in emphasis. Another ground on which he held that the purpose of the Sammelan had been changed is because of Rule 2(6) of the new constitution. Rule 2(6) of the new constitution as translated in English by him reads as follows: 'To popularise Hindi language and literature in the foreign countries'. He held that inasmuch as the old constitution did not put any such 'object in its rules, there had been a change in the purpose of the Sammelan. In our opinion the words 'to endeavour for the development and progress of Hindi literature in all its aspects' occurring in Rule 2(a) of the old constitution are wide enough to embrace in their ambit the popularisation of Hindi language and literature in foreign countries. In a matter like this one need not be very technical and the purposes of a society have to be widely construed. The aim or the object with which or the purpose for which broadly speaking the Sammelan was founded was to develop and popularise Hindi literature in all its aspects. The expansion of Hindi in our own country or its popularisation in foreign lands will be included in the development and progress of Hindi literature in all its aspects. It would be noticed that in Rule 2(a) of the old constitution the words used are 'development and progress of Hindi literature in all its aspects'. The important words are 'development', 'progress' and 'in all its aspects.' In our judgment the context in which these words are used in Rule 2(a) of the old constitution justifies the conclusion that they comprehended not only the development and progress of Hindi literature but also an endeavour to raise the country culturally by its development including its popularisation in the foreign lands. We have to give full meanings to the words 'development' and 'progress' and 'in all its aspects'. If the purpose of the Sammelan had been only to develop Hindi literature, the words 'in all its aspects' would not have been used. The change of purpose contemplated by Section 12 of the Act is a more fundamental change, as for example, the purpose of the Sammelan being changed to the development of Urdu literature from Hindi literature. For these reasons we are of the opinion that Rule 2(a) of the new constitution has not brought about any change in the purpose of the Sammelan. There is thus no infringement of Section 12 of the Act.

20. The next question to be considered is whether the finding of our brother Oak that the new constitution was passed in violation of Rule 46 of the old rules is correct. That rule as translated into English by our learned brother Oak reads as follows:

'46 (a) The delegates present in the Sammelan shall have power to amend these rules. The members of the standing Committee and the affiliated provincial sammelans shall have the right to move proposals for amendment, and such proposals should reach the General Secretary at least two months before the session of the Sammelan. It shall be the duty of the General Secretary to send for publication in newspapers the proposals for amendment of rules and put them up before the Standing Committee. The Standing Committee shall place each of these proposals before the next session together with its own views.

(b) The proposals for amendment of rules shall like other proposals, be placed before the Sammelan by the Subjects Committee, and they shall, like other proposals, be passed by a majority of votes of the delegates. Only for shifting the head office, it shall be necessary that two-third of the delegates present, excluding the delegates residing in the city where the session of the Sammelan is held, should support the proposals for changing the place.'

21. It was held by Oak, J. that the new constitution was not framed in accordance with the provisions of Rule 46 of the old constitution, because the delegates present in the meeting of the Sammelan alone could amend the rules and that power could not be delegated by them to the second committee. On behalf of the appellant it is contended that the view of the learned Single Judge is wrong and there was no bar to the delegates of the Sammelan delegating that power to a sub committee. It is common ground that there is no express provision in the old constitution under which the general body could delegate their functions to a committee. It appears to us that though there was no legal objection to the general body appointing a committee to draft a constitution they could not have provided that if and when eight or more of the members of the committee gave their assent to the draft constitution prepared by the committee the same would be effective and would be a valid constitution without being placed before the general body. Reading Rule 46 it appears to us that there is no scope for the submission that the general body could have authorised eight or more members to pass the constitution. We are of the opinion that in allowing this to be done, the general body abdicated its functions and that part of the resolution cannot be supported. It would contribute towards a correct understanding of the scope of Rule 45 if some portions of the rule were read in original. Those words are as follows:

'In niyamon men parivartan ka adhikar Sammelan ke upasthit partinidhiyon ko hoga. Parivartan ke prastav karne ka adhikar sthai samiti ke sadasvon tatha sambaddh 'Prantiya Sammelanon ko hoga aur aise prastav Sammelan ke adhiveshan se kam se kam do mas pahile Pradhen Mantri ke pas aa jane chahiya.

.....

(kha)--Niyamon ke parivartan ka prastav anva prastaon ki bhnati sammelan men visaya nirvachan dwara upasthit kiya jayga aur anya prastavan ki bhanti pratindhiyon ki adhikansha sammati se swikrit hoga.'

22. The opening words of the rule clearly provide that the delegates assembled at a session of the Sammelan alone shall be competent to change the rules. It is true that word 'alone' is not there but that seems to be the effect of the language used. Secondly, the resolution relating to the amendment or change of the rules has got to be placed in a meeting of the Subjects Committee and has got to be passed by a majority of the members there. This means that before the rules can be amended or changed they must be placed before the subjects Committee. This can only be done if the delegates themselves amend the rules. No question of putting before a Subjects Committee can arise if the powers to change the rules have been given to a committee appointed by the Sammelan in the present case the second committee. It is well established that if a power is required to be exercised in a particular manner it must be exercised in that manner or not at all. See Taylor v. Taylor, (1875) 1 Ch. D. 426; Nazir Ahmad y. Emperor, AIR 1933 PC 253(1) : [1955]1SCR1104 . We are also clear in our mind that a function so essential and fundamental in its nature cannot be delegated without there being any provision in the old constitution authorising such a delegation. Rule 46 appears to us to be a mandatory provision. A study of the various rules contained in the old constitution leads us to the conclusion that Rule 46 is not directory and its disregard cannot be treated to be a mere irregularity. It is well known that when powers are given to a person, corporation or an authority, the same cannot be delegated unless there is an express provision authorising the delegation. See Cook v. Ward, (1877) 2 CPD 255. The function relating to the preparation of the new constitution or rules is an essential legislative function which the Sammelan itself must perform.

23. In Corpus Juris Secundum, Vol. 14, the question of the amendment or change in the constitution or the rules has been summarised in the following words en pages 1282 and 1283:

'If a Club adopts a constitution and byelaws, they constitute a contract between the Club and its members, binding on both, whether the Club is incorporated or not. ..........A bye-law of a Club can be adopted only on compliance with the provisions, if any, in the bye-laws therefor, and key laws, which are permanent and continuing rules of Government, can be amended or repealed only in the manner prescribed by the bye-laws.'

24. The law as stated in Cropus Juris Secundum, in our opinion is also applicable to societies registered in India. For these reasons, in our judgment, the new constitution was passed by contravening the provisions of Rule 46 and on that ground has not been validly passed and cannot be treated to be effective. We may also state that apart from the fact that the general body (the delegates assembled at a session) did not pass the constitution and it is invalid on that ground the new constitution also suffers from another defect and that is, that the procedure provided by Rule 45 of the old constitution has not been followed. That rule requires that before the rules are amended or repealed a resolution to that effect should be moved by one of the members of the Standing committee (asthai Committee) and that such a resolution must reach the Secretary of the Sammelan at least two months before the commencement of the session of the Sammelan. It also requires that when such a resolution is received it shall be published in newspapers and that that resolution should be placed before the meeting of the standing committee who will place it before the delegates of the Sammelan in one of its sessions along with their own suggestions. It is common ground that none of these conditions were observed in the present case. In fact, there could be no occasion for the observance of these conditions because the Sammelan had passed resolution No. 11 authorising the standing committee to draft a constitution and providing that if eight or more than eight of its members signed it, the same would be deemed to be a valid constitution. Most of the procedure provided in Rule 46 referred to above, appears to us to be mandatory and not merely directory. Its disregard, in our opinion, also renders the second constitution ineffective. We may state that Rule 46 is not only a procedural provision meant solely for the purpose of the convenience of the Sammelan or its committees, its functions are much more fundamental. It deals with the question of jurisdiction also inasmuch as it confers on the delegates assembled at the session of the Sammelan (the general body) alone the jurisdiction to amend, alter, or change the rules. There is good authority for the proposition that if a rule or bye-law has been framed by a corporation for its convenience and only to guide Itself in the conduct of its business, its disregard is not actionable. See Municipal Board Shahjahanpur v. Sardar Sukha Singh : AIR1937All264 . The provisions and the scheme of the Act show that in establishing a society different persons associate and the memorandum of association as also the rules amount to an agreement between them governing their relationship. It was held in the case of Noel Frederick Barwell v. John Jackson 1947 All LJ 637 : (AIR 1948 AN 146) (FB), that the relationship between the members of unincorporated members' club is governed by the law of contract and if the members' have agreed to certain terms which are embodied in the rules then in existence or to be made thereafter in accordance with that terms agreed upon by the members, those rules must govern their relationship. By framing Rule 46 the delegates agreed not to change the rules or the constitution except by an act of theirs and after following the procedure provided by that rule. Even 2-majority cannot destroy the effect of that contract incorporated in Rule 46 without first deleting or amending that rule in accordance with the law.

25. It has been urged that when the general body passed a resolution to the effect that if eight or more persons signed the draft rules the same would be effective it must be deemed that the Sammelan passed the rules when eight members of the second committee signal it. Whereas we have no doubt that it was open to the Sammelan to have appointed a committee to frame draft rules, it could not have left to that committee or eight or more of its members to act for the general body. We are conscious that a function like the drafting of rules could not, by its very nature, be performed or properly performed by the delegates and a much smaller body was needed for the same. If the delegates had only left the matter at that there could be no difficulty. But they have done much more. In fact, they have abdicated themselves in favour of eight or more members of the second committee. In the case of Pradyat Kumar v. Chief Justice of Calcutta : [1955]2SCR1331 , one of the grounds of attack against the order dismissing Pradyat Kumar from the post of the Registrar of Original Side of the Calcutta High Court, was that the Chief Justice had left it to a brother Judge to conduct an enquiry into the charges framed against Pradyat Kumar and an argument was advanced that that could not be done. While repelling the submission the Supreme Court observed as follows :

'It is well-recognised that a statutory functionary exercising such a power cannot be said to have delegatedhis functions merely by deputing a responsible and competent official to enquire and report. That is the ordinarymode of exercise of any administrative power. What cannot be delegated except where the law specifically soprovides--is the ultimate responsibility for the exerciseof such power.'

26. These words in our judgment also apply to a case like ours and we are of the opinion that there was no objection to the delegates having appointed the second committee to draft the constitution but they should have shouldered their ultimate responsibility of deciding whether or not the draft constitution prepared by that committee should be passed. For the reasons mentioned above, in our judgment the second constitution has not been validly passed.

27. The question however that still remains to be considered is whether the suit relates to the internal management of the Sammelan or not and whether a civil court has jurisdiction to entertain such a suit. It is true that a society is a juristic person separate from its members as is a company. See B. Rukminamma v. M. Venkata Ramadas, AIR 1940 Mad 949. Therefore the normal rule is that in respect of the internal management of the society, the society as such and not its individual members can sue. There have been a large number of cases both in India as also in England where courts has to consider whether a suit can be brought in respect of the internal management of a company otherwise than in the name of the company itself, by individual members thereof. There is good authority for the proposition that the case of society registered under the Act is similar to that of a club or a joint-stock company, (See A. S. Krishnan v. M. Sundaram, AIR 1941 Bom 312). A Full Bench of this Court in the case of 1947 All L) 637 a : AIR1948All146 (supra), has held that the same principles apply to a club which applied to a joint-stock company. In the leading case on the subject Foss v. Harbottle (1843) 2 Hare 461, it was held that the normal rule is that the corporation should sue in its own name and in its corporate character, or in the name of some one whom the law has appointed to be its representative. Mozley v. Alston, (1847) 16 LJ Ch 217, is an authority for the proposition that ordinarily individual share-holders cannot sustain a Bill in their own names in respect of a matter common to all or relating to the internal management of the company. In the case of Mac Doughall v. Gardiner (1875) 1 Ch D 13, the Court held that it could not interfere in the internal management of a company and dismissed an action brought by one Share-holder on behalf of himself and all other share-holders excluding the Directors, against the Directors and the company complaining against certain matters decided at a meeting. To the same effect is the decision of the Bombay High Court in Bhajekar v. Shinkar, AIR 1934 Bom 243 and of the Madras High Court in Nagappa v. Madras Race Club, : AIR1951Mad831 . The Bombay High Court took the same view in S. Sidhantalankar v. Arya Samaj Bombay, AIR 1946 Bom 516, which was a case of a registered society. This general rule however has got an exception as pointed out in the Madras and Bombay cases referred to above. The exception is that a share-holder can bring an action even with regard to an internal management of a company if (1) the action of the majority is ultra vires the company; (2) where the act complained of constitutes a fraud on the minority; (3) where the action of the majority is illegal and (4) where a special resolution is required by the Article of the Company and the assent of the majority to such special resolution is obtained by a trick, or even where a Company authorised to do a particular thing only by a special resolution does it without a special resolution duly passed. In our case the complaint of the plaintiffs was that the majority of the delegates of the Sammelan acted without jurisdiction in resolving that if sight or more members of the second committee signed the draft rules prepared by it the rules would become effective and that inasmuch as the new rules were brought into force without following the procedure provided by Rule 46 and Section 12 of the Act, the entire proceedings were ultra vires and the new rules void. In our judgment, on allegations like these it is open to individual members of a society to bring a suit and a civil court can take cognizance of the same. The plaintiffs in the suit giving rise to this appeal are members of the standing committee of the Sammelan and as such are interested in its affairs. For these reasons we are of the opinion that there is no difficulty in the way of this Court holding that new rules have not been legally framed and are consequently void. The result of this conclusion is that Sp. A. No. 471 of 1959 fails and Sp. A. No. 576 of 1958 should be allowed.

28. We now come to Sp. A. No. 472 of 1958. After the institution of the appeal an application was made in this Court for permission to withdraw the appeal. This prayer was objected to by the respondents. On 22-10-1959 a Bench of this Court consisting of Mootham, C. J. and Dayal J. allowed the application to the extant that Rai Ram Charan Agarwal, one of the appellants, was permitted to withdraw from the appeal and his name was directed to be expunged from the array of the parties. At the time of the hearing of the appeal Mr. S.N. Kakkar learned counsel for the appellants, stated that inasmuch as the new office bearers were elected for one year only on 9-9-1951 and that period had expired, they were no longer in office and consequently so far as the merits were concerned the appeal had become infructuous and as such he did not wish to press it on merits. He also stated that he wanted to confine his submissions only with regard to that part of the decree of the learned Single Judge wherein he had directed the receiver Sri Jagdish Swamp to hand over charge to Sri Jaichand Vidyalankar. In view of that statement and the fact that Sri Rai Ram Charan Agarwal, who was the main aggrieved party, has withdrawn from the appeal, the same must be. substantially dismissed and all that we need consider is whether the direction given by our brother Oak that Sri Jagdish Swamp should hand over charge to Sri Jaichand Vidyalankar should be maintained. It has been contended that after the expiry of one year from the date of his election Sri Jaichand Vidyalankar ceased to be the President of the Sammelan. This one year admittedly expired before September 1951. Mr. Pathak on the other hand has concluded that there is authority for the view that a director continues in the office till his successor is elected. He submitted that inasmuch as a successor to Sri Jaichand Vidyalankar had not been elected, he should be deemed to be continuing as the President of the Sammelan even today and therefore he is entitled to receive charge from Sri Jagdish Swarup. In our judgment in view of the fact that the period for which Sri Jaichand Vidyalankar was elected expired long ago and he has not been functioning as a President for more than a decade in view of the appointment of a receiver, it will not be proper to hand over charge of the Sammelan to him. The interest of the Sammelan in our opinion be served better and there can be no doubt that it is the interest of the body which is to be the primary consideration--if the receiver is allowed to continue till the next annual session of the Sammelan is held and a new set of office-bearers including the President is elected in accordance with the old rules. The receiver should take early and affective steps to get election held as soon as possible. No case on facts similar to ours has been cited by the learned counsel for the parties which can justify any other conclusion. In our judgment therefore that part of the decree Which directs Sri Jagdish Swarup to hand over charge to Sri Vidyalankar should be set aside. It is necessary that the receiver should continue till the office-bearers are elected, and we direct him accordingly. Even though the appeals are being finally decided, we see no legal hurdle in the way of allowing Sri Jagdish Swarup to continue till the elections take place. The object for which Sri Jagdish Swarup was appointed has not yet been achieved even though the proceedings relating to the litigation between the parties are coming to a close. There is no automatic discharge of a receiver merely because the proceedings in which he is appointed terminate if the objects for which he was appointed are not achieved, see Ramzan Moosakhar v. Abubucker, AIR 1945 Sind 75, and Muthu Vira Reddi v. M. Venkatesa Mudali, AIR 1930 Madras 67.

29. In the present case we consider it not only desirable but imperative that the receiver should continue and Sri Jugdish Swarup should not be directed to handover charge till a fresh election is held. For the last ten or eleven years there has been no election of office-bearers. It is therefore necessary that, election should be held and the receiver being an independent person is best fitted for making the necessary arrangements in that regard. We, therefore, set aside that part of the decree of our brother Oak and direct that Sri Jagdish Swarun will continue to act as the receiver till the new office-bearers are elected and take charge of their respective offices. He shall forthwith take steps to hold an election. After the elections have taken place Sri Jagdish Swarup shall hand over charge to the new President.

30. With regard to Sp. A. No. 473 of 1958 we may state that while dealing with Sp. A. Nos. 471 and 576 of 1958 we have already found that the new rules are invalid. In view of that finding the suit of the plaintiffs, who are the appellants before us, has been rightly dismissed. The only submission made is that the direction of our brother Oak that Sri Jagdish Swarup should hand over charge to Sri Jaichand Vidyalankar should be set aside. While dealing with Sp. A. No. 472 of 1958 we have already said that such a direction is liable to be set aside.

31. The result in that Sp. A. No. 471 of 1953 is dismissed and Sp. A. No. 576 of 1958 is allowed. Sp. ft. Nos. 472 and 473 of 1958 are dismissed except to the extent mentioned above. The parties shall bear their own costs throughout.


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