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Judgment
A.S. Bopanna, J.—The appellants herein were the defendants in O.S. No. 2680/2000. The said suit was filed by the respondent herein seeking for judgment and decree of declaration and permanent injunction. The trial Court after considering the rival contentions has decreed the suit in favour of the plaintiff by its judgment and decree dated 31.7.2007. The defendants therefore claiming to be aggrieved are before this Court in this first appeal filed u/s 96 of the Civil Procedure Code.
The parties would be referred to in the same rank is assigned to them before the trial Court for the purpose of convenience and clarity.
Case of the plaintiff as per plaint:
The case of the plaintiff as pleaded in the plaint is that she is the legally wedded wife of late B.S. Narayan, having married him on 21.5.1984 after he had divorced his earlier wife Smt. Minnie Narayan and resided with him till his death on 23.8.1995. The father of late B.S. Narayan, a leading industrialist late B.M. Sreenivasaiah started educational institution out of his own funds known as B.M. Sreenivasaiah College of Engineering and the same was housed in his own lands and the building was also constructed out of his own funds. Subsequent to his death his only son late B.S. Narayan and his mother and step mother inherited the properties together and were managing the same. They subsequently constituted a trust under the name and style ''Dharmaprakasha Rajakaryasakta B.M. Sreenivasaiah Educational Trust'' under a deed of trust dated 2.12.1957. The purpose and object of the trust is referred to in detail. The worth of the immovable properties is stated to be more than Rs. 5,000/- crores and was transferred by late B.S. Narayan, his mother and step mother for utilisation by the trust. The said trust deed provided for the management to vest in the council of trustees consisting of five trustees. Late B.S. Narayan was designated to be the Donor trustee, to be a permanent trustee during his life time and thereafter the senior most lineal descendent of late B.S. Narayan or a member of his family nominated by him or his wife was to be the donor trustee. Out of the remaining four trustees, late B.S. Narayan or his successor had the right to appoint three of the trustees whose term was three years, while one other trustee was to be appointed or nominated by the Government of Karnataka. It is contended that the Council of trustees in its meeting dated 12.10.1978 under the Chairmanship of late Kadidal Manjappa, former Chief Minister, who was also a trustee decided to amend the trust deed and resolved in that regard. The amendment provided for the donor trustee late B.S. Narayan to nominate any person as donor trustee for life time of such person, to exercise all powers vested in the donor trustee and also provided for succession to the donor trusteeship. In this regard, subsequent to the death B.S. Narayan, his senior most lineal descendant or a member of his family nominated by him or his wife shall be the donor trustees. Government approval had been sought for the said amendment and the same was granted by communication dated 25.09.1979. Supplementary trust deed is said to have been executed on 25.06.1981 carrying out the amendments, except the amendment regarding succession to the donor trusteeship.
Thereafter on 10.12.1994, the council of trustees at their meeting resolved to amend the trust deed to give effect to succession to donor trusteeship which was resolved earlier and approval was granted. In this regard, the Member Secretary Sri. A.C. Ramakrishna was authorised to execute and register the amendment to the trust deed. The minutes dated 10.12.1994 is referred. Accordingly a deed dated 30.06.1995 was executed which provided regarding succession to the donor trusteeship providing that subsequent to B.S. Narayan, his senior most lineal descendant or a member of his family nominated by him or his wife shall be the donor trustee. In this regard Clause IV(i) to (iv) of the deed is referred and extracted. As such it is contended that as per Clause IV of trust deed, it is late B.S. Narayan and after his death his family members are to run the trust and the Government has no power or authority to exercise the power of a donor trustee if a member of the family is available. Only if the mode of succession as in Clause IV fails, the Government can exercise that power. When B.S. Narayan was alive, apart from himself. Sri Y. Ramachandra, Sri A.C. Ramakrishna. Sri M.S. Srinivasa and the Director of Technical Education were the trustees. The plaintiff contends that late B.S. Narayan, exercising the power vested in him in Clause IV(iv) of the deed nominated the plaintiff to be a trustee in his place from 16.01.1995 to the end of March 1997 under the document dated 16.01.1995, which provided that either during his life time or by means of a WILL, the plaintiff shall continue to be the trustee during the plaintiffs, life time and she shall be deemed to be the Donor (1) under the trust deed. To the said document Sri. A.C. Ramakrishna, one of the trustees is also a witness. It is contended that in view of the said document, the plaintiff will continue as donor trustee unless the same is specifically revoked. According to the plaintiff, till his death there has been no such revocation of the appointment of the plaintiff as the donor trustee and as such it is valid and subsisting.
The plaintiff avers that late B.S. Narayan was suffering from cancer of colon and was admitted to Workhardt Hospital on 14.07.1995 and he remained as an in-patient until his death on 23.08.1995. One Dr. C. Vittal, a reputed surgeon is said to have operated him. From 03.08.1995 till his death on 23.08.1995 he was not in a sound and disposing slate of mind due to septicemia and metabolic upset. The said doctor is said to have opined so in his certificate dated 31.08.1995. He died intestate and issue-less on 23.08.1995 leaving behind him his mother Smt. Laxmamma and the plaintiff. There were no lineal descendants and as such the plaintiff became entitled to be the Donor trustee as a matter of course. Even otherwise, by virtue of the deed dated 16.01.1995 the plaintiff claims to be the Donor trustee. The plaintiff contends that after the death of B.S. Narayan, Gri Y. Ramaehandra and Sri A.C. Ramakrishna who were the then trustees approached the plaintiff and requested her to appoint them as trustees for life or till they are 80 years of age. They were upset when the plaintiff did not accede to that demand.
In that background, the plaintiff is said to have sent a letter dated 28.08.1995 to Sri Y. Ramachandra who was the Chairman, informing him that the plaintiff has taken charge as Donor trustee and sought for his co-operation. The other trustees were also similarly informed. After about a month on 20.09.1995, Sri A.C. Ramakrishna is stated to have sent a reply seeking for documentary evidence regarding marital status of the plaintiff. The plaintiff replied him on 22.09.1995. Prof. P.V. Bhandari, who was the Government nominee-trustee is said to have sought for the nomination/appointment as Donor trustee for being forwarded to the Government. Accordingly, the same were sent vide letter dated 30.09.1995. A letter dated 06.10.1995 was also addressed to the first defendant to take suitable steps to ensure smooth functioning of the trust. To the said letter, there was no reply. But the plaintiff received a caveat petition which revealed that the third defendant was appointed as a Donor trustee by the Government of Karnataka by order dated 07.11.1995. The plaintiff states that on enquiry, she came to know that such action was taken since Sri Y. Ramachandra had written a letter dated 15.09.1995 requesting the Government to take over the trust on false pretext. In this regard, the defendants are said to have relied on a deed of appointment dated 13.08.1995 alleged to have been executed by late B.S. Narayan. The said document is disputed not only for want of such power to late B.S. Narayan. But it is also contended that the said document is created and fabricated to perpetuate the control of the trust by Sri Y. Ramachandra and Sri A.C. Ramakrishna. It is contended that as on 13.08.1995 i.e., the date of the document late B.S. Narayan was not in fit and disposing state, of mind and was unable to comprehend things which is established by the certificate of the doctor. Hence the document is seriously disputed. That apart under Clause IV only a living person could have been appointed. The said Sri Y. Ramachandra and Sri A.C. Ramakrishna have also written a letter dated 26.10.1995 to the State Government to appoint them for a period of eight years. Hence their motive would be abundantly clear. The Government nominee also is said to have expressed doubts about the document dated 13.08.1995. The plaintiff therefore contends that the first and second defendants have no power or competence and has questioned the letter dated 07.11.1995 appointing the third defendant as the Donor trustee.
The plaintiff accordingly assailed the order dated 07.11.1995 by filing a writ petition in WP No. 40933/1995, which was disposed of leaving the plaintiff to avail the remedy of civil suit. Until the dispute was resolved, the persons appointed as Chairman and trustees by the Court were to manage the trust. The details of the same is indicated in the plaint and plaintiff was one among them which was also affirmed in the appeal. The plaintiff has accordingly filed the suit seeking for declaration that she is the Donor trustee of the B.M. Sreenivasaiah Educational Trust, Bangalore and also to declare the letter/order dated 07.11.1995 as illegal, invalid, void, unconstitutional and not binding on the plaintiff. Similar declaration is also sought against the letter dated 08.11.1995 and the appointment of third defendant as donor trustee. Consequential relief of injunction is also sought.
Case of the defendants as per written statement:
The third defendant has filed a detailed written statement denying the claim putforth by the plaintiff. The manner in which late B.M. Srinivasaiah had set up the Engineering College with his contribution on philanthropic basis is not denied. However the contribution made by the Government for starting and development by making grant of land, money and other facilities is referred. The manner of grant and assistance as referred in the trust deed dated 02.12.1957 is stated in the statement. The nominee of Government of Mysore Sri B.M. Knshnan I.A.S. was one of the first trustees in whose favour the deed was executed and he was to guide the affairs of the trust. Reference is made to Clause IV(iii)(b) of the trust deed as per which one person will be from Government. The state Government is therefore a benefactor and patron concerned about the well being and development of the institution. In view of the special status of the Government, the proviso to Clause VI(xii) of the trust, deed mandatorily provided for the approval of the Government for any amendment to the trust deed. The contention that late B.S. Narayan was designated as Donor trustee to hold the office during his life time and thereafter his successive senior most lineal descendants were to become the designated donor trustee is admitted. The claim of the plaintiff to have succeeded based on the purported amendment to the trust deed is denied since its validity and enforceability is not accepted. It is contended that the original trust deed dated 02.12.1957 was first amended by a supplementary deed dated 25.06.1981. However, the amendment proposed to Clause IV(i) whereunder Smt. Minnie Narayan the then wife of late B.S. Narayan was to be designated as successor donor trustee was not carried out on account of late B.S. Narayan himself withholding and not granting his approval and consent. Hence there was no amendment to the trust deed to appoint his wife as the successor donor trustee of late B.S. Narayan.
The defendant does not controvert the actual resolutions recorded and grant of approval by the Government, but denies that the amendment deed actually executed had altered in any manner the line of succession as provided in the original trust deed. The attempt of the plaintiff to set herself up as the succeeding donor trustee is contended to be invalid, without justification and prays for rejection. The supplementary deed dated 25.06.1981 is referred as the one which contains the amendment which was consented by late B.S. Narayan and approved by the State Government and is contended that it only enabled late B.S. Narayan to nominate a person to act as a donor trustee ?n his place. Such power was intended only to provide for the appointment of a substitute donor trustee during the lifetime of late B.S. Narayan and cannot be construed as a power to appoint a succeeding trustee at variance with or in modification of the scheme provided in Clause IV(i) of the original trust deed. The interpretation as made by the plaintiff is denied. It is contended that the council of trustees did net have the authority to amend the original trust deed in the manner they actually did and was contrary to the line of succession approved of and consented by the Government of Karnataka. The amendment registered on 30.01.1995 being at variance with the approved resolution is illegal, ineffective, and inoperative. The claim of the plaintiff that she has succeeded as Donor trustee or has the power to nominate the next donor trustee after her art denied as unjustified and unsustainable. The Clause IV(i) from the original trust deed of 1957 with the amendment, as approved and the one in the amendment registered on 30.01.1995 are extracted and the same being in variance with each other is stated and it is contended that, the scheme approved in terms of item (b) stated therein is different from the scheme actually incorporated in the amendment deed. Hence it is contended that the latter scheme cannot be construed as having the approval and consent of the State Government to validate the amendment deed registered on 30.01.1995.
Though the amendment as per deed dated 30.01.1995 is denied, without prejudice it is contended that Clause IV(iv) even therein provides power for a substitute to be appointed for a limited period and to function as per the authority delegated by the Donor (1). In so far as Clause IV(i) it is contended that even after the amendment of 1981, the deed of 1957 remains unaltered on that aspect. The Clause IV(i) is therefore extracted by the defendant to clarify this. It. is contended that 1981 supplementary deed retains Clause IV(i) of the original deed of 1957 since the Donor trustee himself withheld consent to the proposed line of succession. Therefore, the line of succession as per the deed even after 1981 amendment would be as per 1957 deed. The newly introduced Clause IV(iv) in terms of 1981 amendment therefore cannot be construed as empowering the Donor trustee to appoint a successor trustee in violation of Clause IV(i) which is intact. The power under IV(iv) is only to appoint a substitute or alternative donor trustee in his place for duration extendable upto the life time of the Donor trustee and it is not the power to appoint a successor trustee in exercise of the substitution power conferred by the amended Clause IV(iv) as of 1981. Hence any action under Clause IV(iv) to appoint a successor trustee is ultravires, illegal and invalid. It is denied that the approval granted in 1979 effectively approves the amendment made in 1995. It is contended that the succession provided for a lineal descendant of late B.S. Narayan has become inoperative and as such the State Government has stepped in and in exercise of its power has appointed the third defendant to function as the Donor trustee on behalf of the Government of Karnataka.
It is contended that even though the document dated 16.01.1995 was executed and the plaintiff was appointed as substitute trustee upto March 1997, such an arrangement was not acted upon at any time during the life time of late B.S. Narayan upto 22.08.1995. Even otherwise, late B.S. Narayan did not have the power and as such the plaintiff has no right to claim to be a donor trustee by virtue of document dated 16.01.1995. Alternatively it is contended that by deed dated 13.08.1995 the appointment made by document dated 16.01.1995 is actually and impliedly cancelled. The appointment under deed dated 13.08.1995 even otherwise puts an end to whatever claims the plaintiff may have, even assuming the document dated 16.01.1995 to be valid. The allegation that late B.S. Narayan was not in sound and disposing state of mind from 03.08.1995 till his death on 23.08.1995 is denied as false and the correctness of the certificate dated 31.08.1995 issued by Dr. Vittal is denied and its credibility is disputed. The allegation of fabrication of the deed dated 13.08.1995 to perpetuate the control of the trust by Sri Y. Ramachandra and Sri A.C. Ramakrishna is denied. The exercise of the Power by the Government to appoint the third defendant as the Donor Trustee is therefore justified and the cause of action as alleged is disputed. The third defendant has therefore sought for dismissal of the suit with costs.
The defendants No. 1 and 2 though have filed a separate written statement have adopted the written statement filed by die third defendant on all aspects and have further denied the claim of the plaintiff that the Government nominee had expressed doubt about the genuineness of the deed dated 13.08.1995. The defendants have stated that they had no oblique or ulterior motive. The decision was bonafide in the best interests of the trust and all concerned. Therefore, the said defendants have also sought for dismissal of the suit.
Issues framed by trial Court
Based on the rival contentions, the trial Court initially framed 13 issues. On 01-04-2009, the issue Nos. 5 and 6 were recast. Again on 09.06.2009, the issue No. 6 was once again recast for consideration. The original and the recast issues read as hereunder:
Whether the plaintiff proves that she was the legally wedded wife of Shri B.S. Narayan?
Does she further prove that amendments made to the Trust (Dharmaprakasha Rajakaryasaktha B.M. Sreenivasaiah Educational Trust) Deed dated 2.12.1957, is valid, legal and operative?
3-a. Does she further prove that the donor trustee (Shri B.S. Narayan) had authority to appoint his successor?
3-b. Whether the 3rd defendant proves that Shri B.S. Narayan had the power to appoint successor trustee in his place, for the duration extendable up to his life time?
Whether the plaintiff proves that the document dated 16.01.1995, has been acted upon?
Whether the defendants prove that the deed dated 13.08.1995 amounts to cancellation of the appointment made by Shri B.S Narayan, on 16.01.1995?
Whether the defendants prove the execution of the document dated 13.08.1995 and the same was done, in accordance with law and further prove that Shri B.S. Narayan, was in a sound state of mind, when he executed the document dated 13.08.1995?
Whether the plaintiff proves that she is the donor trustee of Dharmaprakasha Rajakaryasaktha B.M. Sreenivasaiah Educational Trust?
Whether the plaintiff proves that order bearing No. ED 108 TEC 91 dated 7.11.1995 passed by the 1st defendant, is illegal, invalid, void and not binding on her?
Whether the plaintiff proves that the letter dated 8.11.1995 addressed by the 3rd defendant is illegal and void?
Whether the plaintiff further proves that the appointment of the 3rd defendant as donor trustee of Dharmaprakasha Rajakaryasaktha B.M. Sreenivasaiah Educational Trust is null and void?
Whether the plaintiff proves that the defendants interfered with her right to act as the donor trustee of Dharmaprakasha Rajakaryasaktha. B.M. Sreenivasaiah Educational Trust?
Whether the plaintiff is entitled to the relief of declaration and permanent injunction, as prayed for?
What decree or order?
In order to discharge the burden cast on the parties, the plaintiff examined herself as P.W.1. One Sri S.N. Parimala kumar i.e., brother of plaintiff was examined as P.W.2 and Dr. C. Vittal was examined as P.W.3. The documents at Exhs.P1 to P27 were marked in evidence. On behalf of the defendants, Prof. R. Harish, Sri S. Haranath, Prof. S. Nagaraj, Dr.(Smt.) Usha Ramanujam, Smt. Krupa Ramanujam, Dr. K. Lakshman and Dr. Chandrashekar were examined as D.W. 1 to D.W.7 respectively and documents at Exhs.D1 to D10 were marked. The trial Court on analysing the evidence has held issue Nos. 1, 2, 3a, 4 and 7 to 12 in the affirmative in favour of the plaintiff. The issue No. 3b. 5 and 6 are held in the negative against the defendants and the suit of the plaintiff was decreed. The defendants are therefore before this Court.
The rival contentions in this appeal
Sri Ashok Haranahalli, learned Advocate General appearing on behalf of the appellants has referred to the Trust deed dated 02.12.1957 (Ex.P5), which is the basic document to this case. Specific reference is made to Clause IV(i) which provides for succession. The supplementary deed dated 25.06.1981 (Ex.P7) is referred to indicate the amendment made to Clause IV(iv) which provides for nomination. The said amendment is made as per the approval granted by the Government as contemplated under Clause V(xii). Though, there was a proposal to amend Clause IV(i), the same was abandoned in the meeting dated 12.10.1978 and as such was not carried out in the deed dated 25.06.1981. It is contended that in such circumstance, even though Clause IV(i) has been amended by dead dated 30.01.1995, the same is without approval of the Government and as such is not valid. Hence, it is contended that the Clause IV(i) as per deed of 1957 and Clause IV (iv) as per supplementary deed of 1981 would remain valid. In such event, Clause IV(iv) would provide only for nomination of the Donor Trustee during the life time of the Donor. As such, the nomination as claimed by the plaintiff under the deed of nomination dated 16.01.1995 (Ex.P10) cannot continue beyond 23.08.1995, the day on which the Donor Late B.S. Narayan died. Even otherwise, the Donor Late B.S. Narayan has executed the subsequent nomination dated'' 13.0.8.1995 (Ex.D1) under which the Government has been nominated. Hence, the plaintiff even otherwise cannot claim right under the document elated 16.01.1995. In view of the Government being nominated as the Donor (1) to exercise the power of the Donor (1), the Government has exercised that power and has appointed the trustees by the order dated 07.1 1.1995 (Ex.P. 15). Alternatively, it is contended that even otherwise, since the amendment to Clause IV(i) of the 1957 deed had not been acceded to by the Donor (1) though proposed earlier and had not been incorporated by the supplementary deed of 1981, the Clause IV(i) as it existed provided for succession on the death of Donor (1), whereunder in the absence of the senior most lineal descendant of Donor (1), the Government was to succeed as Donor (1). In the instant case, since the Donor (1) had died issue-less, the Government has succeeded and the plaintiff being the wife in any event cannot claim such right of succession. Therefore, in either case, the Government was to take over as per the intention of the Donor (1). Such intention of the Donor (1) is in view of the fact that the Government had granted land and also financial aid. Hence, coupled with the succession as per Clause IV(i) the Donor (1) has ensured the same by executing the nomination dated 13-08-1995 (Ex.D1). According to the learned Advocate General, these aspects of the matter has not been properly appreciated by the trial Court.
The evidence tendered by the parties before the trial Court is adverted to by the learned Advocate General to point out that the document dated 13.08.1995 (Ex.D1) has been satisfactorily proved. The evidence of the doctor who was examined as P.W.3 and the medical certificate dated 31.08.1995 (Ex.P11) is commented upon to contend that the said doctor is only a surgeon and could not have stated about the mental disposition with regard to execution of the document Ex.D1. The hospital records regarding treatment has not been produced and as such the certificate is of no consequence. On the other hand, the letter Ex.D3 is relied on to point out that the Prof Venkatakrishnappa had drafted the document and was signed in the presence of the witnesses and also that the witnesses examined as D.W1 to D.W5 had all stated about the mental alertness of late B.S. Narayan even while lie was in the hospital. Therefore, when Donor (1) had exercised his power of nomination under Clause IV(iv), the Government can exercise all powers of Donor (1) and it had the power to appoint the other trustees. Reference is also made to Section 12 of Contract Act, Section 84 of the Indian Penal Code, Section 59 of Indian Succession Act, with regard to the concept of sound mind. When other persons who visited him have stated about his mental condition, the evidence of doctor who is not a specialist should not have been relied on, moreso when the plaintiff has no rebuttal evidence. Above all while considering the Trust deed relating to public trust, the beneficiaries being the general public, the Court should advance public interest. Hence, it is contended that the appeal is to be allowed and the suit should be dismissed.
Per contra, Sn K.G. Raghavan, learned senior Counsel appearing for the respondent-plaintiff sought to justify the judgment and decree of the trial Court. The learned senior Counsel at the outset referred to the two contentious orders of appointment dated 16.01.1995 (Ex.P.10) and 13.08.1995 (Ex.D1) appointing the plaintiff and allegedly appointing the Government. He contends that the genuineness and validity of Ex.P10 is not in question, while the genuineness and validity of Ex.D1 is in question. The said Clauses in IV(i) and IV(iv) of the Trust deed 1957, supplementary deed 1981 and the amended deed 1995 are referred to and it is contended that under 1957 deed, there was no power of nomination. As on 16.01.1995, the succession under IV(i) of 1957 alone held the field and in that light, the said document dated 16.01.1995 is to be examined. Except Donor (1), all other trustees had a term of four years. No power is given to the Government to take over as a matter of right. It is in the above context contended that when the relevant clauses of the trust deed are considered, the intention of the Donor (1) would have to be borne in mind and to gather such intention, the surrounding circumstances also would have to be kept in view. While executing the trust deed in 1957, the Donor B.S. Narayan was aged about 25 years and was unmarried and in such circumstance, the succession as thereunder was provided. He married Smt. Minnie Narayan on 20.02.1959 and as such the proposed amendments were contemplated in 1978 and though the same was passed in the meeting of trustees, the Donor (1) did not deem it necessary to incorporate the amendment to Clause IV(i) and The reason for this is clear from the fact that there was marital discord between him and Smt. Minnie Narayan and divorce petition was filed in 1981 and divorce was granted in 1982. He married the present plaintiff on 21.05.1984. Since even after that there was no lineal descendant as contemplated under Clause IV(i) of the 1957 deed, the Donor (1) thought of amending the same for appropriate succession and the same was approved by resolution dated 10.12.1994 and was ultimately amended by deed dated 30.01,1995. The intention of the Donor (1) that his wife i.e., the plaintiff should succeed him is manifest from the fact that though the Clause IV(i) was proposed to be amended and it has not been carried out and further since Clause IV(iv) was already available, the plaintiff was appointed by deed of appointment dated 16.01.1995. It is not delegation of power, but an appointment for the life of the appointee. In this regard, detailed reference is made to the contents of Clause IV(iv) and the document dated 16.01.1995 (Ex.P. 10) to indicate that such appointment is not upto the lifetime of the Donor (1) but up to the lifetime of the member appointed. Even otherwise, the amendment to Clause IV(i) is also valid and as a wife she would succeed and the Government does not come into the picture at all. The amendment was approved in 1979 but amendment was effected later by deleting the name of Smt. Minnie Malayan and that was resolved in the meeting dated 10.12.1994. Ex.D1 relied on by the appellant itself says amendment was with approval.
According to the learned senior Counsel, the understanding of late B.S. Narayan about the document dated 16.01.1995 is important. As such, the legality or otherwise of the document dated 13.08.1995 (Ex.D1) assumes importance. When the Donor (1) himself had sought for the amendment of Clause IV(i) and was approved in the meeting on 10.12.1994 and amendment was also incorporated on 30.01.1995. it would disclose the intention of the Donor (1) to push the Government lower down in the order of succession and in such event, in a normal circumstance late B.S. Narayan would not have executed the document dated 13.08.1995, when there was already a clause for succession and a document of appointment in existence. Moreover, the document dated 16.01.1995 is not revoked. To point out that Ex.D1 is not valid and is surrounded by suspicious circumstances, the learned senior Counsel referred to its contents and the contents of Ex.D3. It was further pointed out that B.S. Narayan was admitted to the hospital on 14.07.1995 and died on 23.08.1995. In this period, he had undergone three surgeries on 17.07.1995. 22.07.1995 and 02.08.1995. Detailed reference is made to the evidence of D.W.3 and Ex.P11, the certificate issued by him and also to Ex.P.26, which is the discharge summary. In that background, the evidence of D.W.1 and D.W.2 is referred to point out that they are not reliable.
The statements made by the said witnesses are unnatural. Their evidence about mental alertness is inconsequential in the light of the evidence of PW.3 who was the treating doctor. Reference was made to the evidence of DW.3 to point out the discrepancies of the statements made in his examination-in-chief and his cross examination about the manner in which the plaintiff and family members were distressed during his visit. The evidence of DW.4 and DW.5, the two sisters was referred to and pointed out the contradictions to contend that they were not trustworthy. In any event, DW.4 has stated that the condition of B.S. Narayan was serious on 13.08.1995 and in that regard Dr. Vittal had also stated and explained about the effects of septicemia setting in. It is strongly contended by the learned senior Counsel that in view of the precarious health condition of late B.S. Narayan, if at all the appellants were to prove that he had sound mental disposition to execute Ex.D1, there should have been medical evidence and the evidence of DW. 1 to DW.5 would not be of assistance. In this regard, even though DW.6 Dr. K. Lakshman was sought to be examined by filing his affidavit, he was not tendered for cross-examination. Even in his affidavit he states that he did not know the mental condition of late B.S. Narayan. Further DW.7 Dr. N. Chandrashekar a reputed doctor who had appeared had not subscribed to the affidavit prepared on his behalf and had made corrections Neither the corrected affidavit was filed nor did he appear thereafter. Hence it is contended that it is not just the case of ignoring the evidence of DW.6 and there being no evidence by DW.7 but adverse inference should be drawn. The learned senior Counsel also relied on reported decisions in support of the contentions relating to scope of Ex.P10 and also the requirement of proof of Ex.D1.
The learned Advocate General in his reply sought to emphasise that the property of B.S. Narayan had vested in the trust and as such the entire issue should be looked at from the point of view of object of the trust and not in a manner of succession to personal property. The document Ex.D1 is not a WILL but a deed of appointment and should be treated as an order passed by the Donor. Even as per Ex.P10 no right can be claimed by the plaintiff, firstly it was never acted upon, even otherwise that is only a delegation as a nominee which cannot in any event extend beyond his lifetime. Further it can only be subject to Clause IV(i) and as such no right can be claimed. The amendment to Clause IV(i) even if accepted does not include wife. The clauses in the trust deed should be construed keeping in mind the object and noticing the evidence to appreciate the preponderance of probability. Being a public trust, after noticing the succession by Government it would be open for this Court to impose such conditions for better management of the trust and the Government would accept such conditions.
By way of clarification, the learned senior Counsel points out. that it is not open for the learned Advocate General to contend that Ex.D1 is not a WILL. In this regard, it is pointed out that in para 20 of the memorandum of appeal the ground raised is that Ex.P10, document dated 16.01.1995 which is a testamentary document (WILL) relied on by plaintiff has not been proved in terms of Section 68 of the Evidence Act. If that be so, the same test would apply to the document Ex.D1.
The decisions cited by the learned Advocate General and the learned senior Counsel on different aspects would be referred to and analysed at the appropriate time depending on its relevance.
Points for Consideration in this appeal:
Having heard the rival contentions, the following points arise for consideration, more particularly in view of the stress placed by both the learned Counsel on the validity and construction of the relevant clause in the trust deed,
(1) Whether the amendment made to Clause IV(i) of the Trust Deed dated 02.12.1957, vide deed dated 30.01.1995 (Ex P-8) is valid, sustainable and subsisting?
(2) In the event of the above point being held in the affirmative, what would be the appropriate const ruction of the contents of post amendment Clause IV(i) in the trust deed?
(3) Subject to the construction to be arrived at in answer to point No. 2, whether the Government is entitled to exercise power of Donor (1) by way of succession or in the alternative whether the amended Clause IV(i) enables nomination of the Government as done vide document dated 13.08.1995 (Ex. D-1)?
(4) If point No. 3 is answered in the negative and in the nature of construction of Clause IV(i) that may emerge; whether the plaintiff is entitled to succeed as Donor (1) even in the absence of nomination vide document dated 16.01.1995 (Ex.P-10)?
(5) Whether the order bearing to ED 108 TEC 91 dated 07.11.1995 passed by the first defendant and the letter dated 08.11.1995 addressed by the third defendant arc sustainable?
(6) If the answer to second part of point No. 3 is in the affirmative, whether the evidence available on record is sufficient to establish the due execution and validity of the document dated 13.08.1995 (Ex D-1), including the mental disposition of Donor (1) to execute such document?
(7) Does the judgment and decree dated 31.07.2009 passed in O.S. No. 2680/2000 call for interference?
(8) What order?
Analysis of the contentions;
Since all points are interwoven, they are taken up together and discussed. In the nature of the dispute, the contentions raised and the points formulated in this appeal, it would be appropriate to notice the Clause (IV)(i) of the Trust deed dated 02.12.1957 and the Clause IV(i) and IV(iv) of the supplementary deed dated 25.01.1981 and the amended deed dated 30.01.1995. They are extracted for easy reference.
As contained in trust deed dated 02.12.1957 (Ex.P5)
IV(i). The management of "The Trust shall vest in "The Council of Trustees" consisting of five members. Sri B.S. Narayan "Donor" hereto during his lifetime shall be a member of the council of trustees; and alter him the successive senior most lineal descendant of the said Donor (1) shall be one such trustee and shall have the powers and rights of the Donor (1) under these presents. If this mode of succession fails, all the powers exercisable by the Donor (1) under terms of this deed, including powers of appointment of trustees under this deed, shall vest with the Government of Mysore.
As contained in supplementary deep dated 25.06.1981 (Ex.P.7)
Amendment to (i) deferred and Clause (iv) incorporated
IV(iv) for the purposes of sub-para (i) of Clause IV supra, Donor (1) shall have the power of nominating in his place any person for such period or periods as may be specified or for the lifetime of such member, to exercise all or any of the powers vested in Donor (1) under this deed as may be delegated, and such nominee shall subject, to the foregoing be deemed to be the Donor (1) under this deed as may be delegated, and such nominee shall subject to the foregoing be deemed to be Donor (1) within the meaning of this deed.
As contained in amendment deed dated 30.01.1995 (Ex.P-8)
IV(i). The Management of the "The Trust" shall vest in "The Council of Trustees" consisting of five members. Sri B.S. Narayan, "Donor" hereby during his lifetime shall be a member and thereafter the successive senior most lineal descendant of the said Donor (1) or a member of the family nominated by the Donor (1) or his wife shall be one such Trustee and shall have the powers and rights of Donor (1) under these presents. If this mode of succession fails, all the powers exercisable by the Donor (1) under the terms of this deed including the powers of appointment of trustees under this deed shall vest with the Government of Karnataka.
Analysis regarding validity of amendment to Clause IV(i):
Since the above amendment as contained in the amended deed dated 30.01.1995 (Ex. P-8) is disputed by the Government as one carried out. without approval of the Government as contemplated under Clause VI(xii) of the deed, the said aspect of the matter, in my view, requires consideration at the outset. If that is done and if this Court is clear about the actual Clause IV(i) and (iv) that forms a part of the Trust deed as it existed as on 23.08.1995 i.e., the date of death of the Donor (1) late B.S. Narayan, the contentious issue of the rights claimed under the Deed of appointment dated 16.01.1995 (Ex.P.10) and dated 13.08.1995 (Ex.D.1) respectively by the contending parties could be resolved if need be, as at this point apart from the proof of the document and legality of appointment made thereunder, the issue of succession would also arise since appointment under Clause IV(iv) is for the purpose of Clause IV(i) and in such event, the contents of Clause IV(i) would act as the decisive factor.
In that regard, it is seen that as per the order of succession as it contained originally in Clause IV(i) of the deed dated 02.12.1957 extracted above: after the lifetime of the Donor (1) B.S. Narayan, it will be his senior most lineal descendant who will become a trustee and have all the powers of Donor (1). If that fails, the powers of Donor (1) including the power of appointing trustees would vest with the Government of Mysore. Even otherwise, among the trustees, at all stages, one of the trustees was to be a nominee of the Government irrespective of the power of appointing the other trustees being with the Donor (1). Therefore, out of the total five trustees, three were to be nominated by the Donor (1) in addition to himself. When this was the position, the council of trustees in their meeting held on 12.10.1978, the minutes of which is marked as Ex-P-6, resolved to incorporate certain amendments to the said Trust deed. The Government nominee was also present. Among other amendments, the incorporation of amendments to Clause IV(i) and (iv) were also resolved. The Clause (IV)(i) which was resolved for amendment reads as hereunder;
(i) The management of ''The Trust'' shall vest in ''The Council of Trustees'' consisting of five members. Sri B.S. Narayan ''Donor'' hereto during his lifetime shall be a member of the council of Trustees and after him his wife Smt. Minnie Narayan and thereafter the successive senior most lineal descendant of the said Donor (1) or a member of the family nominated by the Donor (1) or his wife shall be one such Trustee and shall have the powers and rights of Donor (1) under these presents. If this mode of succession fails, all the powers exercisable by Donor (1) under terms of this deed including powers of appointment of trustees under this deed shall vest with the Government of Karnataka.
The Clause IV(iv) which was resolved for amendment need not be extracted once again since that is the one which was incorporated in the supplementary cited of 1981 and there is no dispute about the validity of the said amendment.
The amendments as resolved to be carried out including that of Clause IV(i) was approved by the Government in terms of Clause VI(xii) by communication No. ED 24 TEC 79 dated 25.09.1979. Thereafter the supplementary deed dated 25.06.1981 was executed whereunder the amendment by way of Clause IV(iv) was incorporated along with certain other amendments except; Clause IV(i), though the same was also approved by the Government. However, the recital in the supplementary trust deed dated 25-06-1981 (Ex.P.7) refers to the approval of the Government and would further indicate that Sri. B.S. Narayan in his capacity as Donor (1) having also concurred with the proposed amendments, however suggested that amendment to para IV(i) of the original deed be deferred for the time being. Therefore, though the learned Advocate General contended that the Clause IV(i) was not concurred to by B.S. Narayan as he had not taken part in the meeting and that the subsequent incorporation in 1995 was without government approval, the same does not appear to be the correct position. It is no doubt true that B.S. Narayan had withdrawn himself from the meeting as recorded in the proceedings dated 12.10.1978 (Ex.P-6), but there is nothing to indicate that it; was out of dissent or disapproval, but the manner in which the proceedings are recorded, it appears that it was more out of propriety. Further, as noticed, the supplementary deed of 1981 had incorporated Clause IV(iv) and it indicated that Clause IV(i) was only deferred for the time being. The proceedings of the meeting dated 10.12.1994 of the council of trustees has made specific reference to Clause IV(i) being approved earlier but being deferred as it was not urgently required at that stage and therefore was not included in the deed dated 25.06.1981. It is relevant to notice that at the point of amendment in 1981, B.S. Narayan had differences with his erstwhile wife Smt. Minnie Narayan. Hence all these aspects would indicate that the Donor (1) had not only concurred for the amendment, but had a role to play in the deferment and incorporation after modification. Hence, with reference to the approval dated 25.09.1979 it was decided to amend the same, but in the meanwhile since the Donor (1) B.S. Narayan had divorced Smi. Minnie Narayan, the succession to her was deleted and the Clause IV(i) incorporated reads as follows:
IV(1) The management of he ''Trust'' shall vest in ''the Council of Trustees'' consisting of five members, Sri. B.S. Narayan. ''Donor'' hereto during his life time shall be a. member and thereafter the successive senior most lineal descendant of the said Donor (1) or a member of the family nominated by Donor (1) or his wife shall be one such trustee and shall have the power and the rights of Donor (1) under these presents. If this mode of succession fails all the powers exercisable by the Donor (1) under terms of this deed, including power of appointment of Trustees under this deed shall vest with the Government of Karnataka.
In this regard, it is seen that Sri Y. Ramachandra was a trustee when the meeting took place on 12.10.1978. He is also participant in the execution of the supplementary deed dated 25.06.1981 and also the meeting dated 10.12.1994 wherein the sequence of events leading to the said amendment is indicated. Despite all this, he is the same person who addressed the letter dated 15.09.1995 subsequently feigning ignorance of the deed elated 30.01.1995 and indicating break down of the functioning of the trust. That apart Sri A.C. Ramakrishna was the Trustee-Secretary in the meeting held on 10.12.1994 and the amendment deed dated 30.01.1995 has been executed by him. The said persons have not tendered evidence before the trial Court. The allegations against them in bringing about the present situation appears probable. Further, though the Government representative-trustee was on the Board of Trustees, there has been no objection and as such the approval of the Government which was obtained on 25.09.1979 would remain valid and the amendment which was deferred has been thereafter incorporated in the amended deed.
Apart from the above, the most relevant aspect is that the Government themselves are relying on the deed of appointment dated 13.08.1995 (Ex D-1) by stating that the same has been drafted by a legal luminary Prof. B. Venkatakrishnappa, who was the former Dean and Principal, and further contending that B.S. Narayan being fully aware of the contents has signed the same. In such circumstance, in the relied on document (Ex. D-1) itself, it is recited that the Trust deed dated 02.12.1957 was amended once by registered document dated 25.06.1981 and further amended by second document dated 30.01.1995 after following the formalities required in regard to amendment, which included the approval of the Government of State of Karnataka. When such document is relied on by the Government to justify its exercise of power of Donor (1) for appointment of trustees by the impugned order dated 17.11.1995 (Ex.P15), the question of appointment as per Ex. D-1 would have arisen only in a circumstance if there was amendment to Clause IV(i) and not otherwise. It would be farfetched for the Government, to turn around at this point to contend that the amendment to Clause IV did not have concurrence of Donor (1) and the incorporation of amendment, to Clause IV(i) by amended deed dated 30.01.1995 is without approval of the Government when they have elected to act upon the amended clause. In this regard, the decision of the Hon''ble Supreme Court in the case of C. Beepathumma and Others Vs. V.S. Kadambolithaya and Others, has laid down the law that a person who accepts a benefit under a deed should stand by it and cannot, approbate and reprobate. The said principle is restated in the case of R.N. Gosain Vs. Yashpal Dhir, .
Further, the approval of the Government as contemplated should be understood in its correct perspective since such requirement has been incorporated by the Authors themselves and as such the same cannot be considered on par with a statutory provision imposing an absolute bar. If the entire scheme of the Trust is reckoned, the approval is contemplated so that the object with which the Trust is constituted is not defeated. A perusal of the deed would indicate that in all its effect, the Donor (1) who was also one of the authors of the Trust has a major role to play even in the matter relating to amendment. The amendment should be concurred by Donor (1) and approved by the Government. If this is kept in view and the matter is examined further, as discussed above, the Donor (1) himself suggested the amendment as per letter dated 10.09.1978 and the council of trustees in its meeting accepted the amendment to both Clause IV(i) and (iv) and was approved by the Government en 25.09.1979. Thereafter, the supplementary deed dated 25.06.1981 was made which included only Clause IV(iv), while Sub-clause (i) was deferred at the instance of Donor (1). The said Sub-clause (i) provided for the inclusion of Smt. Minnie Narayan by succession but three years had elapsed after such amendment was suggested in 1978 by the Donor (1) himself but in the mean lime, there was marital discord between Donor (1) and the said wife and divorce proceedings was initiated, which was grained in 1982. Hence, at that stage, the inclusion of Smt. Minnie Narayan did not arise. Subsequently, the Donor (1) married the plaintiff in 1984 and as pointed out on behalf of the plaintiff, they did not beget any lineal descendant even after lapse of ten years of their marriage and as such the resolved, approved and deferred amendment became a necessity once again and the mere deletion of the name of Smt. Minnie Narayan would have achieved the purpose in this regard, it was discussed in the meeting dated 10.12.1994 of the Council of Trustees and all the eminent persons who were administering the Trust on taking note of the sequence including the earlier approval of the Government resolved for inclusion of the same. The clause incorporated would indicate only the deletion of the phrase "alter him his wife Smt. Minnie Narayan." By exclusion of the name of Smt. Minnie Narayan who was not the wife by then, it was ensured that, she would have no right but the wife of Donor (1) at that point in time would derive such right.
Therefore, the explanation put forth on behalf of the plaintiff is not only more acceptable on preponderance of probability but would also indicate that the approval granted earlier by the Government would be sufficient since the amendment is the same in its content and effect. This is so in view of the fact that the proposal in 1978 for which approval was granted by the Government in 1979 is for providing succession to the wife of Donor (1) after his lifetime, which would indicate that the Government had no objection regarding the nature of amendment arid that is the very same amendment which is made in 1995, except that the wife happens to be a different woman no doubt the status of the plaintiff as the wife of the Donor (1) was also disputed in the suit, however the issue in that regard was held in favour of the plaintiff. The learned Advocate General has fairly submitted that the said issue is not pressed. As such there is no dispute as to the fact that the plaintiff is the wife of Donor (1). Hence, I am of the view that the Clause IV(i) and IV(iv) as amended and available in the documents dated 25.06.1981 and 30.01.1995 are the prevalent clauses relating to succession and nomination.
Analysis of the content in the amended Clause IV(i):
Thus, having noticed the above discussed circumstances and having come to the conclusion that Clause IV(i) as per the deed dated 30.01.1995 would be the relevant clause in operation and further having concluded that the defendants after having elected to exercise their right relying upon the amended clause cannot retrace its steps to bank on Clause IV(i) of the deed dated 02.12.1957, the next exercise would be to understand the purport of the amended Clause IV(i) and the nature of nomination/succession that is contemplated since that would be relevant in the light of the power available to the Donor (1) under Clause IV(iv) to nominate in the manner stated therein for that purpose since both the plaintiff and defendants relied on a document of appointment dated 16.01.1995 (Ex. P-10) and 13.08.1995 (Ex. D-1) respectively and in the absence of which natural succession will in any event take place.
The learned Advocate General strongly contended that the appointment made under Clause IV(iv) would not extend beyond the lifetime of the Donor (1) nor does it provide for a person in addition to the Donor (1) and as such it is only delegation of the power of the Donor (1) to be exercised during his life time and as such in any event, the appointment under Ex. P-10 cannot extend beyond the lifetime of B.S. Narayan. This contention would also indicate that the right claimed by the defendants under Ex.D-1 is not in the nature of power of the Donor (1) by way of delegation but by nomination/appointment to take effect after his death. In the light of such contention, it is clear that right would arise only pursuant to the amendment dated 30.01.1995. However the learned senior Counsel for the plaintiff contended that the document Ex.P-10 will remain in force till the life time of the appointee since the appointment is "for the life time of such member" and relied on the Law Lexicon to indicate the purport of the use of the word "such". On this aspect the contention of the learned Advocate General appears to be more appropriate and acceptable. That, is so because, as already noticed, the original Trust deed dated 02.12.1957 contained only Clause IV(i) in its original form and Clause IV(iv) was not in existence. In the resolution of 12 10.1978 (Ex.P-6) amendment to Clause IV(i) and introduction of Clause IV(iv) was resolved to be made but what was incorporated by way of supplementary deed dated 25.06.1981 (Ex.P-7) was only Clause IV(iv) and not the amendment to Clause IV(i) which is done only by the amendment deed dated 30.01.1995 (Ex.P-8). At this stage, what cannot be lost sight of is that the deed of appointment (Ex.P-10) is dated 16.01.1995 which is prior to the amendment dated 30.01.1995. However the aspect that may also arise for consideration is. if Ex.D-1 is held to be invalid and in that context whether the nomination made under Ex.P-10 could be considered as a nomination in furtherance of amended Clause IV(i) since it provides for nomination of a family member and in that context whether it can be reckoned by holding that the amendment dated 30.01.1995 would relate back to the date of the original trust deed dated 02.12.1957 as has been held by the trial Court.
However, before adverting to those aspects of the matter, considering the submission of the learned Advocate General that the trial Court had failed to concentrate on the real question and proceeded at a tangent requires consideration. According to him, the purport of the succession as contemplated under the original Clause IV(i) or amended IV(i) would be the real issue and only thereafter, the correctness of the nomination as made would arise. According to him, the said clause either in its original form or its amended form itself would indicate the right of the Government. In that situation, in my view, the re-appreciation of the oral evidence would arise only if the nomination as made under Ex. P-10 or Ex.D-1 becomes relevant after clearly understanding the purport of Clause IV(i) as it stands after amendment since it has already been concluded above that the amended clause is what would be relevant. The said clause no doubt has been extracted above. However, since the said clause has been dissected by the learned Advocate General and the learned Senior Counsel in two different forms, for better understanding, it would be appropriate to extract it once again at the cost of repetition and notice the clause in its entirety and then notice the dissected versions projected by each side.
IV(i). The Management, of the Trust shall vest in the council of Trustees consisting of five members. Sri. B.S. Narayan. ''Donor'' hereby during his lifetime shall be a member and thereafter the successive senior most lineal descendent of the said Donor (1) OR a member of the family nominated by the Donor (1) OR his wife shall be one such Trustee and shall have the powers and rights of Donor (1) under these presents. If this mode of succession fails, all the powers exercisable by the Donor (1) under the terms of this deed including the powers of appointment of trustees under this deed shall vest with the Government of Karnataka.
The contentious point is about understanding the manner of nomination and succession, more particularly with regard to nomination of family member or succession of wife which is the issue since it is not in dispute that if all other modes fail, the Government will be entitled to exercise the power of Donor (1) to appoint trustees. The learned Advocate General contends that; the third alternative in the second part of Clause IV(i) only provides for nomination of a family member by the wife of Donor (1) and not the entitlement of the wife herself to succeed. The learned senior Counsel on the other hand contends that it provides for the wife to succeed and only if that does not happen the Government can exercise the power, which is the last alternative. For better understanding, the contents of Clause IV(i) is put in the dissected form as understood and put forth by either of the parties, which is as follows;
According to the learned Advocate General, it should be read and construed as hereunder;
(a) B.S. Narayan - Donor (1) - after his lifetime
(b) Successive senior most lineal descendant of Donor (1)
Or
A member of the family nominated by Donor (1)
Or
A member of-the family nominated by the wife of Donor (1)
(c) The Government of Karnataka
According to the learned Senior Counsel for plaintiff it should be read and construed as hereunder;
(a) B.S. Narayan - Donor (1) - after his lifetime
(b) Successive senior most lineal descendant of Donor (1)
Or
A member of the family nominated by Donor (1)
Or
Wife of Donor (1)
(c) The Government of Karnataka.
In order to come to a conclusion as to which of the proposition would be the correct position, the same is to be analysed. The fact that late B.S. Narayan did not leave behind him any lineal descendant is not in dispute and as such that option is ruled out. The next option is the nomination of a family member to be made by the Donor (1). In that regard, the wife being a family member can be nominated if it is done in the proper manner and in this regard the nomination dated 16.01.1995 (Ex.P-10) is also relied on. But as already noticed above the consideration of the validity of that document and the relevance of the same would arise only if need be for that purpose. Hence the important aspect is the proper understanding of the third alternative in the second part of the clause in question. Firstly, it cannot be in doubt that the clause as it existed after amendment would have to be construed even though at an earlier point the amendment proposed was slightly different. The relevant alternatives would read thus "a member of the family nominated by the Donor (1) OR his wife shall be one such Trustee". A reference to english grammar by Wren and Martin will indicate that ''OR'' is a disjunctive or alternative co-ordinating conjunction which express a choice between two alternatives. Hence, if it is plainly read by using the conjunction ''OR'', the succession of wife is a clear alternative to any other relative if not appointed by the Donor (1) himself. If it is to be understood in the manner put forth by the learned Advocate General, then there should have been use of conjunctions in pairs i.e., ''either'' and ''or'' should have been used in the same sentence. In such case, the alternative would have been provided thus, "a member of the family nominated either by the Donor or his wife." At least in the absence of the conjunction ''either'', its place should have been taken by a comma, semicolon or colon after the word "nominated" appearing in the sentence.
Therefore, in my view, the correct manner of understanding it is that, if no member of the family is nominated by the Donor (1) indicating so as to who should succeed him as Donor (1) after his death, it would be his lineal descendant and if he has not left behind any lineal descendant, the wife of Donor (1) would succeed him as a trustee with all the powers of Donor (1). On the other hand, if the construction as propounded by the learned Advocate General is accepted in the fact situation notwithstanding the grammatical connotation, at the outset, it would lead to an anomalous situation in as much as that even though the wife is not treated as Donor (1) on the death of her husband who was Donor (1) she would be bestowed with larger power than that, i.e., to nominate the Donor (1). As such the intention cannot be that as otherwise without even having anything to do with the Trust, she would be granted such wide power, which cannot be countenanced, that too if the further contention of the learned Advocate General that the intention of the Donor (1) was that the Government should succeed and not his wife is to be accepted. No doubt, it is also sought to be suggested on behalf of the defendant, that such provision is made since the earlier intention was that Smt. Minnie Narayan would succeed and as such reference to wife therein is to her. Even that does not appear to be probable for the reason that even in such event she would have automatically been Donor (1) in her own capacity by succession as the first option and the second contingency itself would not have taken effect and there would not have been the need for providing power in the manner suggested. Further, if such construction is accepted it would only mean that even though the wife cannot herself be the Donor (1), she would have the discretion and control to decide as to who should be nominated as Donor (1) from among the family members which could not have been the intention. Therefore the purport of Clause IV(i) is clear that if any other family member is not nominated by the Donor (1) himself, the wife of Donor (1) is to succeed as trustee with powers of Donor (1).
Analysis of other alternate aspects:
No doubt, who else were the family members at that point would have been a question for consideration only if that situation had arisen, but existence or nonexistence of any other family member cannot be the basis for understanding the purport of the clause. The mother of Donor (1), Smt. Laxmamma, who is also one of the authors of the trust was also living as on the relevant date. In any event, if such discretion of appointing a trustee, who would exercise the powers of Donor (1) was bestowed on the wife by Donor (1), as per the construction placed by the defendants themselves, then they cannot be heard to contend that the Donor (1) had the intention that the Government only should succeed for better administration. It is clear that the succession i.e., exercise of power by the Government as provided was only if all other modes failed and not. otherwise. In that context also, if the said contention of the defendants is examined further, even in that event, the power of the wife to nominate a family member as contended by the defendants or the succession by the wife herself could have been intervened by the Donor (1) himself by nominating any other family member. In this regard even if the nomination dated 16.01.1995 (Ex. P-10) is not considered as one such nomination for other reasons, though the wife nominated therein is a family member, and on the other hand if the nomination dated 13.08.1995 (Ex. D-1) is accepted on the face of it as a genuine document without considering the question of proof of the same, still it cannot alter the situation. The nomination to be made by the Donor (1) can be only that, of a family member and that power cannot be used to nominate the Government. The Government has the right only to exercise the power of appointing-the trustees as the last alternative and if that is interrupted by any one of the other modes, the Government would have no right, except the right to be exercised in the situation explained in para IV (15) relating to breakdown.
One more aspect of the matter is that, the Government themselves contend that the document dated 13.08.1995 (Ex D-1) is executed in view of the provision contained in IV(iv) and seek to exercise the power under such document after the death of Donor (1). The learned Advocate General has categorically contended that the document Ex. D-1 is not a WILL in relation to the proof of the said document. If that be so, the document Ex. D-1 is a document of nomination/appointment which is similar to or on par with the document dated 16.01.1995 (Ex. P-10) relied on by the plaintiff. In so far as the document Ex.P-10, the consistent contention of the learned Advocate General is that it can operate only during the lifetime of the Donor (1). In fact the contention in the written statement reads as follows;
The power granted to the donor trustee under the amended IV(iv) is only to appoint a substitute or alternative donor trustee in his place for the duration extendable upto the lifetime of the donor trustee viz., Sri. B.S. Narayan. Sri B.S. Narayan therefore did not have the power to appoint a successor trustee in exercise of the substitution power conferred by the amended Clause IV(iv) as of 1981. Any action purported to have been taken by him under the said Clause IV(iv) to appoint a successor trustee is therefore ultravires the powers of the doner trustee, illegal and invalid.
Though such contention is put forth with reference the position as in 1981, the purport of power under Clause IV(iv) would remain the same as contended by them in so far as nominating any other person since the nomination of a family member is provided in Clause IV(i) itself, of course after amendment. Thus the power of nomination/appointment under Clause IV(iv) cannot be contended to be different to their benefit while denying the same benefit to the plaintiff if the position of Clause IV(i) was same on such day. Therefore even on that count the right of the Government cannot be considered based on Ex. D-1. Similar would be the case of the plaintiff and as such the decisive factor is the right as concluded to exist under Clause IV(i) after amendment.
In the above backdrop the validity of the documents dated 16.01.1995 (Ex. P-10) and 13.08.3995 (Ex. D-1) including the proof of the document dated 13.08.1995 would loose its relevance. In view of the fact that Clause IV(i) after amendment in any event provides for nomination of a family member, the nomination of the Government is not envisaged as per the terms of the Trust deed. In the pre-amendment provision also the nomination or appointment was not envisaged except for succession. Even if Ex.D-1 is to be construed as a WILL, the bequeath cannot be contrary to the provision in the deed. In fact, as noticed above, the learned Advocate General himself vehemently contended that the said document is not a WILL but a deed of appointment as contemplated under Clause IV(iv) for the purpose of nomination provided under Clause IV(i). Since I have already concluded that the amended Clause IV(i) would hold the field and the wife would herself succeed, even under natural succession the right can be ascertained without even adverting to the right created under the document dated 16.01.1995 (Ex. P-10) since in such circumstance, the contention as to whether the appointment under the document dated 16.01.1995 (Ex. P-10) is for the life time of the Donor (1) or beyond the lifetime also would loose its relevance.
It is no doubt true that the plaintiff had placed much reliance on the document dated 16.01.1995 (Ex.P10) in the suit and the issue in that regard was also held in favour of the plaintiff. In that view, the question would be as to whether the same would make any difference to the result of the suit since I have held that the said document would loose its relevance. It is true that the first principle in a civil suit is that the plaintiff would succeed or fail based on the case pleaded and proved. However, in the instant case, it is seen that the plaintiff has not abandoned the right of natural succession even though reliance is placed on the document in question. Both in the plaint ana in the evidence as PW. 1, by way of affidavit, it has been stated as follows:
Sri B.S. Narayan died intestate on 23.08.1995 at Bangalore leaving behind him his mother, Smt. Laxmamma and myself as his only legal heirs. He did not have any children. Consequently upon the death of Sri B.S. Narayan, since he did not have any lineal descendants, I became entitled as a matter of course and right, to be the donor trustee of the trust. That apart, by virtue of the deed dated 16.01.1995 executed by Sri B.S. Narayan appointing me as the donor trustee of the trust, I became the donor trustee of the trust and validly continued as such.
Hence even though right was claimed under the said document, even if that is not considered or even if it fails the natural right cannot be denied. Secondly in the instant case the defendants had also placed reliance on a document which is also not relevant. The evidence tendered through DW. 1 to 5 is only with regard to production of documents and health condition of Donor (1) so as to establish that document and there is no evidence to deny the natural right: by the plaintiff. Above all, since the main issue in the suit is relating to the trusteeship of a public trust, the same cannot be considered as a purely adversarial litigation as ultimately the provision in the trust deed is to be interpreted more particularly when the defendants by document dated 13.08.1995, order dated 07.11.1995 and letter dated 08.11.1995 interfered with such right claimed by the plaintiff. In that view, even if the discussion is on the aspect of the relevant clause in the trust deed rather than the right claimed under Ex.P10, the ultimate result based on the answers to the points raised for consideration in this appeal is what matters in so far as determining the right of the parties.
Conclusion:
In view of the above discussion, point No. 1 raised herein is answered in the affirmative. Pursuant thereto, the construction placed on Clause IV(i) would indicate that the nomination/appointment as made vide document dated 13.08.1995 (Ex.D1) is not sustainable on the face of it. Hence point No. 2 is answered accordingly, and point No. 3 in the negative. Therefore, when the Government is not entitled to exercise the power of the Donor (1) to appoint trustees either having such right by way of succession or under the document dated 13.08.1995 (Ex.D1), the order bearing No. ED 108 TEC 91 dated 07.11.1995 passed by the first defendant and the letter dated 08.11.1995 addressed by the third defendant are without authority and as such are not sustainable. The Point No. 5 is therefore held in the negative. Consequent on the answer to the said points in the manner stated above, the point No. 4 is answered in the affirmative. Since the second part of point No. 3 is also held in the negative, even if the oral evidence tendered through DW.1 to 5 on behalf of the defendants is analysed and even if it is established that the Donor (1) was mentally alert, that does not take the case of the defendant any further and as such, in view of the answer to the points raised in the manner done, the point No. 6 will not arise for consideration. Further, since the decisions cited by both the sides is with regard to validity or otherwise, including suspicious circumstances relating to the document dated 13.08.1995 (Ex. D-1), the same need not be analysed since the document itself does not create any right as already discussed above.
In the light of the above, a perusal of the judgment of the trial Court which is impugned in this appeal would no doubt indicate that in view of the rival contentions, issues were also raised relating to the right of the plaintiff under the document dated 16.01.1995 and the trial Court has held the right of the plaintiff under the said document also by holding the Issue relating to the same in the affirmative. Though that is the position, the trial Court has also held the amendment to the trust deed as valid. I have also discussed this aspect of the matter in para 42 supra. In that, background, even though the validity of the document dated 16.01.1995 (Ex.F-10) is held as unnecessary to be decided by this Court, the ultimate decision of the trial Court and this Court with regard to the plaintiff being entitled to exercise the power of Donor (3) is one and, the same in so far as the conclusion. In any event, the cause of action for the suit arose in view of the order dated 7.11.1995 and the communication dated 08.11.1995 which was an attempt to deny the right of the plaintiff and to interfere with her assuming the powers of Donor (1) on succeeding as a trustee. In that regard the point No. 5 raised in this appeal has been held in the negative. In that view, the declaration made and injunction granted by the trial Court being the ultimate relief is in consonance with the findings rendered herein. Hence the judgment and decree does not call for interference. The point No. 7 is therefore held in the affirmative.
Before parting, it is necessary to notice the repeated submission of the learned Advocate General that the trust in question being a public trust owning valuable assets should be administered in a manner so as to benefit the beneficiaries who are the general public. Hence it is appropriate that the Government should take over that responsibility is the contention. In my view, it is very premature at this stage to assume that the plaintiff as one of the trustees and the others nominated by her would not manage it in a manner so as to serve public interest. Yet it is necessary to mention, though the legal right is held in favour of the plaintiff, she would have to be sensitive to this aspect of the matter. The plaintiff, as the wife of Donor (1) had the occasion to observe the functioning of the trust for more than ten years until the death of Donor (1). Thereafter she has functioned as one of the members of the managing body which was constituted by this Court in the writ proceedings when interim arrangement was made till the suit is decided. During this entire period i.e., during the life time of her husband and thereafter, she had the occasion to see that at all times, very eminent, persons who were either former Chief Minister or Retired Judges of this Court have managed the Trust as Chairman and other eminent persons were the trustees. After disposal of the suit when the plaintiff had the occasion to nominate the trustees, which is presently functioning, as informed to this Court, eminent persons have been nominated and a former Advocate General is functioning as the Chairman. In that view, I am optimistic that the plaintiff would discharge her onerous responsibility by keeping the public interest in focus. Considering the past history, the plaintiff would do well to appoint former constitutional authorities, former Vice Chancellors. Educationalists and very eminent persons of high integrity to function as trustees and Chairman apart from herself being one of the trustees as and when the need arises. Further, since the Government has the right of nominating/appointing one trustee at all times, they shall also appoint an appropriate person who shall function as a watchdog in public interest. If all this caution is thrown to the winds and if the plaintiff does not aid the proper functioning of the trust, she would have to blame herself for providing circumstances to the Government to exercise its power as contemplated under Clause IV(15) or such other legal options which are even otherwise available, all of which no doubt would be amenable for judicial review and scrutiny. Hence at this stage, there is no scope for this Court to suggest any particular committee.
In terms of the above discussion. I pass the following:
ORDER
I) The appeal is RFA No. 788/2009 stands dismissed.
II) Parties to bear their own costs.