Supreme Court of India
DR. T. VARGHESE GEORGEversusKORA K. GEORGE & ORS.
- Citation
- 2011 INSC 764
- Decided
- 13 October 2011
- Disposal
- Dismissed
- Bench
- R V RAVEENDRAN
Holding
The Supreme Court held that the T. Thomas Educational Trust is a secular public charitable trust, not a minority institution, and the High Court was justified in framing a scheme under Section 92 CPC.
Summary
The case concerned the T. Thomas Educational Trust, founded by a Christian philanthropist to run schools and a college. After the founder's death, allegations of mis‑management by his widow led three interested persons to file a suit under Section 92(1)(g) of the Code of Civil Procedure seeking a scheme for the trust. The central issue was whether the trust was a public charitable trust or a minority educational trust, which would affect the court's jurisdiction to intervene. The Supreme Court examined the trust deed, the founder's secular intent, the composition of the board, and the inapplicability of minority status certificates issued under the Tamil Nadu Private Schools Act. It held that the trust is a secular public charitable trust, that the High Court correctly exercised its power under Section 92 to frame a scheme, and that the matter could not be reopened due to issue estoppel. Consequently, the appeal, the special leave petitions and the contempt petition were dismissed.
Issues considered
- Whether a suit under Section 92(1)(g) CPC can be instituted by persons with interest in a trust alleged to be a public charity.
- Whether the T. Thomas Educational Trust is a public charitable trust or a minority educational trust.
- Whether the High Court had jurisdiction to frame a scheme for the trust under Section 92 of the CPC.
- Whether orders granting minority status to three schools under the Tamil Nadu Private Schools (Regulation) Act affect the character of the trust.
- Whether appointment of a non‑Christian executive trustee violates Article 30(1) of the Constitution.
- Whether the question of the trust's character is barred by issue estoppel under Explanation IV to Section 11 CPC.
Legislation cited
- Code of Civil Procedure, 1908s. 11, s. 92
- Religious Endowments Act, 1863
- Tamil Nadu Private Schools (Regulation) Act, 1973s. 11, s. 41, s. 53
Subjects
public charitable trustsection 92 CPCminority educational institutionArticle 30scheme of trusttrust administrationissue estoppelsecular trustTamil Nadu Private Schools Act
Judgment
[2011] 12 S.C.R. 1070
A DR. T. VARGHESE GEORGE
v.
KORA K. GEORGE & ORS.
(Civil Appeal No. 6786 of 2003)
OCTOBER 13, 2011
B
[R. V. RAVEENDRAN AND H.L. GOKHALE, JJ.]
CODE OF CIVIL PROCEDURE, 1908:
c s. 92(1)(g) - Public charities - Trust created for public
purpose of a charitable nature i.e. running the school -
Allegations of mis-management - Suit for settling a scheme
- Maintainability of - Held: As per s. 92, two or more persons
having interest in the Trust may institute such a suit where
0 such persons make out a case of breach of any Trust created
for public purpose - One of the purpose set out in sub-s. (1 )(g)
is settling a scheme - Out of the three persons who filed the
suit one was a member of the Board of Trustees, the other
was the person who had raised funds for buying land for the
E Institution and for constructing the building of the school and
the third was a parent of a student of the school - None of
these persons can be said to be as lacking good intention for
the trust - The Division Bench of the High Court realized that
a proper scheme for administration of Trust was necessary
and, therefore, rightly framed the scheme considering the
F object of the Trust.
Trust for public purpose - A person belonging to a
minority, created a Trust for the public purpose of running a
school - HELD: The finding of the single Judge of the High
G Court that the Trust was not a minority Trust was left
undisturbed by the Division Bench of the High Court in appeal
and reaffirmed by a Bench of three Judges of the Supreme
Court - This being the position, the issue with respect to the
character of the Trust as a secular education trust cannot be
H 1070
DR. T. VARGHESE GEORGE v. KORA K. GEORGE 1071
& ORS.
permitted to be reopened - Even otherwise, the secular A
character of the institution was set out in Clause 10 of the
declaration made by the founder - There is nothing in the
initial declaration made by the founder that the institution was
to be a minority institution - All the trustees nominated were
on ex-officio basis or on the basis of their qualifications and B
not on the basis of religion - The funds and income was to
be utilized for encouraging poor and deserving students
irrespective of caste, creed or religion - It is nowhere stated
in that declaration that the trust was being created for the
benefit of the Christian community - Constitution of India, c
1950 - Article 30.
One T. Thomas who started a school by name 'St.
Mary's School', executed a deed of declaration of a trust
by name 'T. Thomas Educational Trust' for the purpose
of running of the said school. On his death, the Trust and D
the school came under the management of his wife,
namely, Smt. 'ET'. There being allegation of mis-
management of the funds of the Trust by her, three
persons including respondent no.1, filed a suit uls 92 of
the Code of Civil Procedure, 1908 before the High Court E
for framing a scheme for the Trust. The plea of Smt. 'ET'
that the Trust was a private trust and a Minority lnsmution,
was rejected and it was held that it was a Public
Charitable Trust. It was found that the Trust was running
several schools and a College also. The High Court, F
ultimately, framed the scheme and appointed a Board of
Trustees consisting eight persons including one former
Judge of the High Court as its Chairman and one retired
IAS as Executive Trustee. The SLP filed by Smt. 'ET'
challenging the judgment of the High Court was G
withdrawn by her. The appellant, who claimed to have
raised some good funds for the Trust, but was not a party
before the High Court, filed the instant appeal. The
appellant also filed CMP No. 20476/2003 which was
H
1072 SUPREME COURT REPORTS [2011] 12 S.C.R.
A allowed by the High Court in 2005 and he was joined as
a respondent in OSA No. 49 of 1995 before the High
Court. The appellant filed CMP No. 5660/2005 and CMP
No. 9402 of 2006 for appointment of a receiver and
seeking modification of the scheme decree passed in
B OSA No.49 of 1995. Meanwhile Smt. 'ET' died in 2006. The
High Court dismissed all the three CMPs by a common
order dated 21.9.2007. It further declined to entertain the
CMPs filed by two more persons to be impleaded as
additional applicants. The said two persons filed SLP
C Nos. 22590 and 22591 of 2007. The appellant had also
filed contempt petition No. 435 of 2004.
The appellant in the instant appeal once again raised
the issue that T. Thomas Educational Trust was a minority
institution and could not be considered as a public trust
D and, as such, the High Court erred in exercising
jurisdiction and framing the scheme for administration of
the Trust u/s 92, CPC.
Dismissing the appeal and the petitions, the Court
E
HELD: 1.1 As per s.92, CPC two or more persons
having interest in the trust may institute a suit in the
principal civil court of original jurisdiction to obtain a
decree concerning a public charity for various purposes
mentioned therein. Such suit will lie where these persons
F make out a case of alleged breach of any trust created
for public purposes or for directions of the court for
administration of the trust. One of the purposes set out
in sub-s. (1) (g) is settling a scheme. Out of the three
persons who filed Civil Suit No.601 of 1987, one was a
G member of the Board of Trustees nominated by the
founder himself. The other was the brother-in-law of the
founder. He has raised funds for buying lands for the
institution, and for constructing the buildings of the
school. The third was a parent of a student of the
H
DR. T. VARGHESE GEORGE v. KORA K. GEORGE &1073
ORS.
institution. None of these persons can be criticized as A
persons lacking good intention for the trust. [para 25]
[1099-F-H; 1100-A-B]
1.2 Sub-s. (2) of s.92 lays down that a suit claiming
any of the reliefs specified in sub-s. (1) has to be instituted 8
in conformity with that sub-section. Such suit having been
filed, the trial court gave a finding that it was a public trust
and not a minority institution. That finding has been left
undisturbed by the High Court, and confirmed by a bench
of three judges of this Court. Although, the trial court C
declined to accept the principal prayer, the Division
Bench in appeal realised that an appropriate scheme for
the administration of the trust was necessary. The High
Court, therefore, framed the scheme considering the
objects of the trust by its order dated 4.12;1995. [para 26]
[1100-C-E] D
1.3 It is material to note that the Division Bench had
framed the scheme by its order dated 4.12.1995, after
calling upon Smt. 'ET', the wife of the fouhder to give her
proposals which she had declined. Still, with a view only .,_ E
to give one more opportunity to her, this Court remanded
the matter once again to the High Court. The Division
Bench of the High Court which heard the matter after
remand appointed a retired Judge of the High Court as
the interim Chairman, and a retired IAS Officer as the F
Executive Trustee and Correspondent in April 2002. The
Chairman so appointed, made the necessary reports to
the Division Bench and pointed out that Smt. 'ET' was
mis-managing the trust. The Division Bench considered
all the aspects and proposals including that of Smt. 'ET' G
for framing the scheme and framed an appropriate
scheme by its order dated 5.12.2002. Apart from the
appellant, and Smt. 'ET', hardly anybody has raised any
grievance with respect to the functioning of the Chairman
or the Correspondent. The appellant did not choose to
initiate any proceedings with respect to the functioning H
1074 SUPREME COURT REPORTS [2011] 12 S.C.R.
A of the trust as required u/s 92. After the scheme was
finalized, although Smt. 'ET' filed an appeal, she withdrew
the same. It was at this stage that the appellant filed the
instant appeal. The correct course of action for him ought
to have been to file a suit u/s. 92, if he deemed itfit. [para
B 27) [1100-F-H; 1101-A-C]
2.1 As far as the character of the trust as a secular
public trust is concerned, that view was taken initially by
the Single Judge. Subsequently, it was confirmed by a
Division Bench of the High Court as well as by a bench
C of three judges of this Court. The fact that the trust was
set up by the founder who belongs to a religious minority
was very much there before the courts all throughout. The
fact that three schools of this trust had obtained a
certificate of minority character was canvassed before the
D single Judge, and in spite of that submission the single
Judge gave a finding that the trust was not a minority
trust. He recognised the ~ecular character of the
institution, particularly, by referring to Clause 10 of the
declaration made by the founder. The specific finding on
E issues No. 6 and 7 was left undisturbed by the Division
Bench of the High Court in appeal and reaffirmed by a
bench of three judges of this Court. Smt. 'ET' did not file
any appeal on this finding of the single Judge to the
Division Bench of the High Court. This Court has already
F confirmed that finding. This being the position, the issue
with respect to the character of the trust as a Secular
Education Trust cannot be permitted to be reopened.
[para 28] (1101-C-F; 1102-E]
G 2.2 Explanation IV to s.11 of the Code clearly lays
down that any matter which might and ought to have
been made ground of defence or attack in such former
suit shall be deemed to have been a matter directly and
substantially in issue in such latter suit, and a civil court
cannot try the same issue once again between the same
H
DR. T. VARGHESE GEORGE v. KORA K. GEORGE 1075
& ORS.
parties or between the parties under whom they were A
litigating. The same proposition applies to issue estoppal.
[para 28] [1101~G-H; 1102-A]
Shiromani Gurdwara Parbandhak Committee Vs. Mahant
Harnam Singh 2003 (3) Suppl. SCR 805 =2003 (11) SCC B
377 and Mahant Harnam Vs. Gurdial Singh 1967 SCR 739 =
AIR 1967 SC 1415 - relied on.
3.1 As regards the orders obtained under the Tam11
Nadu Act by three schools belonging to the trust, it is
necessary to note in this connection that these orders C
were obtained from a civil court and were confirmed in
appeal. However, it must be noted that a recognition of a
school as a minority school is to be obtained from a
competent authority u/s 11 of that Act, and not from any
civil court, and any party aggrieved by non-grant thereof o
has a right of appeal u/s 41 of that Act to the prescribed
Authority. Section 53 of the Act clearly lays down that no
civil court shall have jurisdiction to decide or deal with
any question which is by or under this Act required to be
decided or dealt with by an authority or officer mentioned E
in this Act. Thus, prima facie, it would appear that the
orders were obtained from a forum non-juris. The reliance
on the jµdgments of the civil court though pressed into
service before the single Judge were not taken as a
relevant factor for deciding the minority character of the
F
trust. [para 29] [1102-F-H; 1103-A]
3.2 The statement of objects and reasons of the Act
states that the act was passed to regulate the service
conditions of the teaching and non-teaching staff in
private schools and in that context some separate G
provisions were made for the minority schools. In the
instant case, though the declaration was claimed under
the Tamil Nadu Act, it was not obtained from an authority
specifically created for that purpose under the Act to give
H
1076 SUPREME COURT REPORTS [2011] 12 S.C.R.
A such a status declaration. Therefore, these orders cannot
be used for determining the character of the trust. It is
also relevant to note that these orders were obtained after
the demise of the founder and not during his life time.
[para 29] (1103-C-D]
B 4.1 With respect to an outsider coming in the
management, it is to be seen that the founder had not
designated any of the persons on the board by their
religion. Thus, he nominated all the persons in their ex-
officio capacity as: (a) Principal of the school (ex-officio),
C (b) Headmaster/Headmistress, (c) Warden of the Hostel
(ex-officio), (d) Member elected by the parent association,
(e) Member elected from the staff council, and (f) Three
persons having high standard in the education field
nominated by the first five. When one sees the formation
D of this board, one just cannot say that persons other than
Christians cannot be in the management of the institution.
Incidentally, it may be noted that the nominated Chairman
is a Christian. The objection of the appellant appears to
be only on the basis of the religion of the Executive
E Trustee and Correspondent of the trust. [para 30] (1103-
E-H]
4.2 In the case of Very Rev. Mother Provincial* two tests
were laid down. The negative test is that a contribution
from other communities to a minority institution and
F conferring of benefits of the institution to the majority
community are not the factors which matter in deciding
the minority character of the institution. The positive test
is that the intention in founding the institution must be
to found an institution for the benefit of a minority
G community. As far as, these negative tests are
concerned, they can be said to be satisfied in the instant
case. But the positive test which is more significant,
namely, the intention must be to found an institution for
the benefit of a minority community, is not satisfied. There
H
DR. T. VARGHESE GEORGE v. KORA K. GEORGE &1077
ORS.
is nothing in the initial declaration made by the founder A
that the institution was to be a minority institution. All the
trustees nominated were on ex-officio basis or on the
basis of their qualifications and not on the basis of
religion. The funds and income was to be utilized for
encouraging poor and deserving students irrespective of B
caste, creed or religion. It is nowhere stated in that
declaration that the trust was being created for the benefit
of the Christian community. The approach of the founder
is clearly seen to be a secular approach and he did not
create the trust with any restricted benefits for a religious c
community. Merely because he belongs to a particular
faith, the persons belonging to that faith cannot claim
exclusive right to administer the trust. The establishment
and administration must be both by and for a minority
which is not so in the instant case. [para 31-32] [1104-A- · 0
D-H; 1105-A]
*State of Kera/a Vs. Vety Rev. Mother Provincial 1971 (
11 SCR 734 = 1970 (2) SCC 417; S. Azeez Basha Vs.
Union of India 1968 SCR 833 =AIR 1968 SC 662; Secretaty,
Malankara Syrian Catholic College Vs. T. Jose and others E
2006 (9) Suppl. SCR 644 = 2001 (1) sec 386;
Commissioner Hindu Religious Endowments, Madras Vs.
Shri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt 1954 (5)
SCR 1005 - referred to.
F
All Saints' High School, Hyderabad and others Vs.
Government o(Andhra Pradesh 1980 (2) SCR 924 = 1980
(2) sec 478 - held in applicable.
Md. Ismail Ariff and others Vs. Ahmed Moo/la Dawood
and another AIR 1916 P.C. 132 - referred to. G
4.4 In the facts and circumstances of the case, there
was no error in the impugned judgment of the Division
Bench of High Court dated 5.12.2002 on O.S.A 49 of 1995
in holding that T. Thomas Educational Trust is a secular H
1078 SUPREME COURT REPORTS [2011] 12 S.C.R.
A public charitable trust and not a minority institution. The
High Court was accordingly justified in framing the
scheme u/s 92 of CPC to see to it that the trust is
administered in a better way. The scheme is in the interest
of the trust. By the common order of the Division Bench
s dated 21.9.2007 in CMP Nos. 5673 of 2003, 5560 of 2005,
9402 of 2006 and CMP No. 10340 and 10341 of 2005, the
High Court has held on merits t.hat the appellant had
failed to make out any case of mis-management against
the Chairman or the Correspondent, and there is no error
c in the High Court order in that behalf. [para 33] [1105-D-
F]
Bishwanath Vs. Shri Thakur Radha Bal/abhji 1967
SCR 618 = AIR 1967 SC 1044; T.M.A. Pai Foundation and
others Vs. State of Karnataka and others 2002 (3) Suppl.
D SCR 587 = 2002 (8) SCC 481; Ahmedabad St. Xavier's
College Society Vs. State of Gujarat 1975 (1) SCR 173 =
1974 (1) SCC 717; and Kerala Education Bill 1959 SCR
995 = AIR 1958 SC 956 - cited.
E Case Law Reference:
1967 SCR 618 cited para 8
1971 ( 1 ) SCR 734 referred to para 19
2006 (9 ) Suppl. SCR 644 relied on para 20
F
1980 (2 ) SCR 924 held inapplicable para 20
AIR 1916 P.C. 132 referred to para 20
1968 SCR 833 relied on para 23
G
2002 ( 3 ) Suppl. SCR 587 cited para 23
1975 ( 1 ) SCR 173 cited para 23
1959 SCR 995 cited para 23
H 1954 (5) SCR 1005 referred to para 23
DR. T. VARGHESE GEORGE v. KORA K. GEORGE &1079
ORS.
2003 (3) · Suppl. SCR 805 relied on. para 28 A
1967 SCR 739 relied on para 28
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
·6786 of 2003.
B
From the Judgment and Order dated 05.12.2002 of the
High Court of Judicature at Madras in O.S.A. No. 49 of 1995.
WITH
SLP (C) No. 22590-22591 of 2007. c
And
Contepmt Petition (C) No. 435 of 2004 in C.A. No. 6786 of
2003 .
. K. Subramanian, E.C. Agrawala, Mahesh Agarwal and D
Rishi Agrawala for the Appellant.
M.S. Ganesh, V. Giri, R. Ayyam Perumal, K. Seshachary,
Shomana Khanna, G. Natarajan, Subramanium Prasad, V.N.
Raghupathy, S. Nanda Kumar, Achin Goel, R. Satish Kumar,
Deepak Prakash, Usha Nandini, Biju Raman, Mohammed E
Sadique, Jogy Scaria and Purnima Bhat for the Respondents.
The Judgment of the Court was delivered by
H.L. GOKHALE J. 1. Civil Appeal No. 6786 of 2003 raises
the question as to whether T. Thomas Educational Trust, F
Perambur, Chennai, is in any way a Minority Educational Trust?
And if so, whether the Division Bench of the Madras High Court
was justified in framing a scheme for the administration of this
trust under Section 92 of Code of Civil Procedure, 1908 ('CPC'
for short) by treating it as a Public Charitable Trust? G
Facts leading to Civil Appeal No. 6786 of 2003 are this
wise-
2. One Shri T. Thomas son of Shri Thomas Pappy; of H
1080 SUPREME COURT REPORTS (2011) 12 S.C.R.
A Perambur, Chennai, started a school in Chennai by name 'St.
Mary's School' sometime in the year 1970. On 4.4.1975, he
executed a deed of declaration of a trust by name 'T. Thomas
Educational Trust' for the purpose of running of the school on
the terms and conditions mentioned therein. In para 2 of this
s deed he declared the objects of the trust as follows:-
"2. The said Trust shall have the following objects
name/y-
a. to run the said St. Mary's School,
c
b. to run other Educational Institutions and Institutions
allied to Educational Institutions like Research
Institutions.
c. to accept donations in any manner from any person
D or Institutions whether Governmental or quasi
Governmental or otherwise, for carrying out the
purpose of the Trust.
d. to borrow moneys from banks and/or other credit
E Institutions and/or individuals and/or public bodies
and/or other Governmental or quasi-Governmental
bodies, on the security of its properties or
otherwise, for the purpose of the Trust.
e. to lease out or sell or mortgage or otherwise deal
F
with any of the properties of the Trust whether
moveable or immovable for the purpose of the
Trust."
3. In para 3 he declared that the entire control and
G management of the Trust including appointment of the
Correspondent of the School shall rest in a 'Board cif Trustee'
who shall consist of the following persons namely:-
(a) The Principal of the School (ex-officio)
H
DR. T. VARGHESE GEORGE v. KORA K. GEORGE &1081
ORS. [H.L. GOKHALE, J.]
(b) Headmaster or Headmistress A
(c) Warden of the St. Mary's School Hostel (ex-officio)
(d) A member elected from the Parents Association of
the School.
8
(e) A member elected from the Staff Council of the
School.
(f) Three members nominated by the above five
members, having high standing in the Educational c
field.
He nominated the First Board of Trustees in para 4. The
members thereof were as follows: -
(a) Rev. Fr. G.M. Thomas, B.Sc., L.T., acting Principal D
of the School.
(b) Mr. Jo~eph Ebenezer, B.Sc., LT. Headmaster
(c) Mrs. Elizabeth Saraswathi, Warden of the St.
Mary's English School Hostel E
(d) Mrs. Molly Thayil, 37, Vyasa Nagar, Madras-39
(e) Mr. J. Devaraj, B.A. (Staff Member)
(f) Mrs. Mary Joshna Thomas, M.A.B.D., Prof. of F
History, St. Stephen'sCollege, Pathanapuram, ·
Ke re la
(g) Mr. D.V. DeMonte, M.L.C., President, Anglo Indian
Association, Madras .G
(h) Pandit M.C. Chandy, Teaching Assistant (Retd.)
Madras ChristianCollege School, Madras
4. What Shri T. Thomas declared in para 10 with respect
H
1082 SUPREME COURT REPORTS (2011] 12 S.C.R.
A to the income of the School and utilisation of its funds is very
crucial for our purpose. This para reads as follows:-
"10. The income from the School or any income or
funds pertaining to the Trust shall be exclusively used
for the purpose of the Trust including financial assistance
B
to poor and deserving pupils or students irrespective of
caste, creed or religion."
(emphasis supplied)
c 5. Shri Thomas died on 16.1.1984, and the trust and the
school fell under the management of his wife Smt. Elizabeth
Thomas. There were allegations with respect to mis-
management of the funds of the institution by her. This led three
persons taking interest in the activities of the trust to institute a
o suit in the Madras High Court under Section 92 of the CPC for
framing of a scheme for this trust. They were:-
(i) Shri D.V. DeMonte, a ·member of the First Board
of Trustee,
E (ii) Dr. K.P. Natrajan, a parent of a student of the
institution, and
(iii) Shri Kora K. George, respondent No. 1 herein, who
is husband of the sister of Late T. Thomas.
F 6. This suit was numbered as Civil Suit No. 601/1987,
wherein
(i) T. Thomas Educational Trust, (ii) Smt. Elizabeth
Thomas, (iii) Smt. Molly Thayil and (iv) Rev. Thomas Mar
G Osthatheos, were joined as the defendants. The learned Single
Judge framed the necessary issues and then after recording
evidence decided the suit. Issue Nos. 6 and 7 from amongst
them were as follows:-
"6. Whether the suit falls outside the purview of
H
DR. T. VARGHESE GEORGE v. KORA K. GEORGE &1083
ORS. [H.L. GOKHALE, J.]
section 92 of the Code of Civil Procedure as contended A
by the second defendant?
7. Whether this court has no jurisdiction to interfere
with the management and with administration of the first
administration of the first defendant Trust under section 92
B
C.P.C."
7. It was canvassed by Smt. Elizabeth Thomas before the
learned single Judge that the concerned trust was a private trust
and a Minority Institution. She pointed out that three schools of
the institution had obtained declaration of being minority, C
educational institutions. Therefore, it was submitted that the '}
single Judge did not have jurisdiction to entertain the suit under
Section 92 of CPC. That submission was not accepted by the
learned single Judge. The learned Judge looked into the
original trust deed and noted that in para 3 of the founder's D
declaration, one of the objects was to accept donation in any
manner from any person or institutions whether governmental
or otherwise for carrying out the purpose of the Trust, which was
the educational purpose. He also referred to the above referred
clause 10 which stated that the income and funds of the E
institution were to be exclusively used for the purposes of the
trust, including financial assistance to the poor and deserving
students irrespective of caste, creed or religion. He referred to
the prospectus of St. Mary's group of schools. He also noted
that no benefit whatsoever was to be retained by any member F
of the family, and the beneficiaries were only public. At the end
of para 29 he held that the above factors would show that it is
a Public Charitable Trust. This para reads as follows:-
"29. Issue 6 and 7:-
G
Ex. P-1 is the Trust deed. I shall refer to the clauses
in it, which are relevant for considering whether it is a
public charitable trust. In the first page he has stated that
this declaration of trust is made by T. Thomas, herein after
called the declarant which expression shall whenever it is H
1084 SUPREME COURT REPORTS [2011] 12 S.C.R.
A not repugnant to the context mean and include the heirs,
successors, executors, administrators and legal
representatives of the Declarant. In para 3, it is stated that
the said trust shall have the following objects, viz.,
(a) to run the said St. Mary's School;
B
(b) to run other educational institutions, and institution
like research institution;
(c) to accept donation in any manner from any person
c or institutions whether governmental or otherwise for
carrying. out the purpose of the Trust etc.
In page 5, as per clause 8, a sum of Rs.2,000/- has
been deposited with Indian Overseas Bank, Perambur in
the name of the trust, which sum along with further donation
D etc., shall be utilized for the purposes for which the trust is
created. As per clause 10, which is found at page 6, the
income form the school or any income or funds pertaining
to the trust shall be exclusively used for the purpose of the
trust, including financial assistance to poor and deserving
E pupils or students irrespective of caste, creed or religion.
IN Ex. P-2, which is prospectus of St. Mary's group of
Schools under.T. Thomas educational trust, in para 1, it is
stated as follows:-
F "T. Thomas educational trust was founded by
chevalier t. Thomas M.A., Dip in Econ. (London), to
promote quality education in North Madras." The above
would show that the trust was created wholly for the
purpose of imparting education. It is also seen that there
is provision for donations from the public. It is further seen
G
that no benefit whatsoever was retained by any member
of the family and the beneficiaries are only public. The
above would show that it is a public Charitable Trust."
8. The learned Judge however was of the view that the
H
DR. T. VARGHESE GEORGE v. KORA K. GEORGE &1085
ORS. [H.L. GOKHALE, J.]
three conditions as laid down by this Court in Bishwanath Vs. A
Shri Thakur Radha Bal/abhji reported in [AIR 1967 SC 1044],
had to be satisfied for invoking Section 92 of CPC viz. that (i)
the trust is created for public purpose of a charitable or religious
nature. (ii) there was breach of trust as directions of court is
necessary in the administration of such a trust; and (iii) the relief B
claimed is one of the reliefs enumerated therein. The single
Judge took the view that a case of breach of trust had not been
made out, and the prayer for direction was vague, and therefore
although he found the trust to be a charitable trust, he gave a
finding in the affirmative on issue Nos. 6 and 7. Issue No.8 was c
as to whether the plaintiffs could be considered as interested
persons to maintain the suit and ask for settlement of a scheme.
The learned single Judge held that they could not be said to
be interested persons. He therefore, dismissed the suit. At the
end of para 30 he held as follows:-
-D
"30 ........ But, if after.evidence is taken, it is found
breach of trust alleged has not been made out and that the
prayer for direction of the Court is vague and is not based
on any solid foundation in facts of reasons but is made only
with a view to brig the suit under section then a suit E
purporting to be brought under section ·92 must be
dismissed. In this case, after evidence is taken it is found
that the breach of trust alleged has not been made out and
the allegations in the plaint and the grievances made are
not based on any fact or basis. The ratio of this ruling F
squarely applies to the facts of this case. Though I have
found that this trust is a Public Charitable Trust, in view of
my findings under Issues 1 to 3, 5 and 8 it follows that
Issues 6 and 7 are to be decided.in the affirmative."
G
9. The respondent No. 1 herein carried the matter in
appeal by filling O.S.A. No. 49 of 1995. Smt. Elizabeth did not
file any cross appeal or objection on the finding rendered by
the single Judge that the institution was a public trust. The
Division Bench noted with approval that on Issues No.6 and 7,
H
1086 SUPREME COURT REPORTS [2011] 12 S.C.R.
A the single Judge had held that the institution was a public trust.
With respect to the finding of the single Judge on above Issue
No.8, the Division Bench noted that Shri Kora K. George was
instrumental in buying vast lands which are in possession and
ownership of T. Thomas Educational Trust. He was also
B incharge of constructing buildings for Marian School and St.
Mary's Girls School, Sembium at Madras. The Division Bench
held that he was a person who was very much interested in the
trust and the view taken by the learned single Judge to the
contrary was not correct. In the facts and circumstances of the
... case the Division Bench formed the opinion that having held
"" the institution to be a public trust, it was necessary to frame an
appropriate scheme. It noted that initially there was only one
school run by the trust, but now it was running a college also,
and a representation to the Principal of the college on the board
D of trustees was necessary. The Court was of the view that it
was absolutely necessary to fill up the lacunae in the deed of
trust which could be done only be framing a scheme therefor.
The Court, therefore, passed an order on 20.11.1995 calling
upon both the parties to file draft schemes for the consideration
of the Court. Smt. Elizabeth Thomas did not file any draft
E scheme in spite of this specific order. The Court, thereafter,
considered the draft scheme filed by Shri Kora K. George, and
modified it appropriately and accordingly allowed the appeal
by its judgment and order dated 4.12.1995.
F 10. Smt. Elizabeth Thomas and T. Thomas Educational
Trust filed a Civil Appeal before this Court against that judgment
and order, which was numbered as Civil Appeal 16578of1996.
A bench of three Judges of this Court disposed of the said
appeal on 27.10.1999 by passing the following order:-
G
"We are of the opinion that the judgment of the
High Court on the legal issues which were raised
does not call for any interference but considering the
fact that the appellants had been the managing
trustees ever since the inception, one furthet
H
DR. T. VARGHESE GEORGE v. KORA K. GEORGE &1087
ORS. [H.L. GOKHALE, J.]
trustees ever since the inception, one further A
opportunity should be grantf3d to them to file a draft
scheme which should be considered along with the draft
scheme which was filed by the respondent herein. It will
be more appropriate, in our opinion, that the exercise of
consideration the draft schemes should be undertaken B
by the High Court rather than by this Court. We,
therefore, while affirming the judgment of the High
Court in all other aspects remand the case to the High
Court for considering afresh the draft schemes. The
appellants herein will file the draft scheme within eight c
weeks from today. The High Court will decide the
question thereafter after giving reasonable opportunity to
both the sides ......... "
(emphasis added)
D
As can be seen from this order, this Court specifically affirmed
the judgment of the High Court on all aspects. It remanded the
matter only with a view to give an opportunity to Smt. Elizabeth
Thomas who had filed the appeal. It is also material to note that
pending the decision on the scheme, this Court continued the E
status-quo with regard to the operation of the approved
scheme.
11. After the matter was remanded, a Division Bench of
the Madras High Court went into the issue of framing of the
F
scheme. It looked into the history of the proceeding as stated
above. The High Court noted that although initially the trust was
running only one school, by the time the appeal was being
decided in December 2002, it was running eight schools and
colleges. The Court noticed that there were allegations of
financial mis-management against Smt. Thomas, and therefore G
appointed Mr. Justice Kanakaraj, a retired Judge of Madras
High Court as an interim Chairman of the trust. He gave two
reports on 3,6.2002 and 7.10.2002, wherein he reported that
Smt. Elizabeth Thomas was trying to sell the land of the
H
1088 SUPREME COURT REPORTS [2011] 12 S.C.R.
A institution situated at Madhavaram which was purchased for its
engineering college.
12. The Court examined the draft scheme presented by
Smt. Elizabeth Thomas, Shri Kora K. George and also by the
B interim Chairman. Smt. Thomas once again tried to raise the
issue that it was a minority institution, but the Division Bench
declined to accept that submission in view of the finding of the
single Judge on that issue being left undisturbed by this Court.
Smt. Thomas wanted to be appointed as a trustee for life.
Division Bench noted that there were serious allegations with
C respect to mis-appropriation of funds against her. While looking
into these allegations, the High Court noted that she had
created one trust of her own by name Elizabeth Thomas Trust
in October 1997. She had obtained a loan of Rs.2.50 crores
on the security of T. Thomas Education Trust, and diverted that
D amount to her own trust. The Division Bench had therefore, by
an earlier order dated 27.3.2002 held that the assets of the
Elizabeth Thomas Trust shall be treaLed as belonging to the T.
Thomas Trust. Smt. Thomas sought the appointment of a
religious leader of the Christian community as a trustee for life
E and as Chairman of the trust. The Division Bench observed in
para 16 of its judgment, that such a request cannot be acceded
to, and a public trust cannot be by a backdoor method
converted into a religious trust. It therefore framed the scheme
in its judgment and order dated 5.12.2002. In paragraph 25 it
F appointed a Board of Trustees consisting of eight persons. This
para 25 reads as follows:-
"25. The first Board of Trustees shall comprise of
Justice J. Kanakaraj, former Judge of the Madras High
Court, as Chairman, Shri S. Palamalai, l.A.S. (Retd.), as
G
Executive Trustee and Mrs. Elizabeth Thomas, as trustee,
Dr. V.A. Vasantha, the Principal/Headmaster of St. Mary's
Matriculation Boys High Secondary School, Perambur,
Chennai 11, the Principal/Headmistress of St. Mary's
Matriculation Girls Higher Secondary School, Sembium,
H
DR. T. VARGHESE GEORGE v. KORA K. GEORGE &1089
ORS. [H.L. GOKHALE, J.]
Chennai-11, the Principal/Headmaster of Chevalier T. A
Thomas Elizabeth Matriculation Higher Secondary School,
Perambur, Chennai 11, the Principal of Chevalier T.
Thomas Elizabeth College for Women, Perambur, Chennai
11, as trustees. They shall within two months from the date
of their first meeting nominate a trustee to represent the B
non teaching staff employed in the institution."
13. Smt. Elizabeth Thomas filed SLP No.24352 of 2002,
to challenge the said judgment and order, but later on she
withdrew the same on 20.01.2003. (She has subsequently
passed away on 5.9.2006.) In the present Civil Appeal No. C
6786/2003, this judgment and order is challenged by the
appellant herein who is a medical practitioner from Cheimai,
and who admittedly was not a party before the High Court as
stated by himself in para 1.1 of the SLP. He claims to have
arranged some good funds for the trust. He has once again D
sought to raise the issue in this Court that T. Thomas
Educational Trust cannot be considered as a public trust.
According to him it is a minority institution and therefore, the
High Court erred in exercising the jurisdiction under Section 92
of CPC. E
14. The appellant thereafter filed Civil Miscellaneous
Petition (CMP) No. 20476 of 2003 to implead himself in
disposed of O.S.A No. 49 of 1995. He med another CMP No.
5673 of 2003 on 10.12.2003 for removal of the Chairman and F
the managing trustee before the Madras High Court in O.S.A
No. 49 of 1995. The appellant made a grievance that the
executive trustee and the Chairman were alienating the
properties and assets to the prejudice of the trust. He however,
did not move that CMP, and filed I.A. No.4 in Civil Appeal No. G
6786 of 2003, to restrain the trustees from alienating any of
those estates or properties and sought appointment of a
receiver. This Court rejected the said I.A. by passing the
following order on 16.4.2004"-
"We are not inclined to appoint a receiver as prayed H
1090 SUPREME COURT REPORTS [2011] 12 S.C.R.
A for in this application at this stage. However, we restrain
the trustees from alieniating any of the estates or the
property without the permission of this Court. IA is
rejected."
15. The appellant thereafter moved a Contempt Petition
8
bearing No. 435 of 2004 and pointed out that in breach of this
order dated 16.4.2004, the above executive trustee and
Chairman were disposing of a few vehicles and furniture of the
institution. Thereupon, this Court passed the following order on
c 6.9.2004:-
"List the Contempt Petition along with the main
appeal. The application filed by the applicant for the
appointment of Receiver shall be moved before the High·
Court. We grant permission to the applicant to make such
D application before the High Court."
16. (i) CMP No. 20476/2003 was allowed by the High
Court on 9.3.2005 and the appellant was joined as a
respondent in O.S.A No. 49 of 1995. Thereafter, the appellant
E moved CMP No. 5660/2005 in O.S.A No. 49 of 1995 for
appointment of a receiver. He also filed CMP No. 9402 of 2006
seeking modification of the scheme decree passed in O.S.A
No. 49 of 1995. The appellant made various grievances
including that some five acres of land of the trust at Madhavaram
had been sold at a much lesser price to the prejudice of the
F trust. The executive trustee and the Chairman denied these
allegations, and pointed out that all the decisions were taken
by the entire board of trustees and not only by these two
persons. On the other hand they alleged that the appellant was
acting at the instance of Smt. Elizabeth Thomas. The Division
G Bench of the High Court examined all these issues, and
accepted the submissions of the executive trustee and the
Chairman, and dismissed these three CMPs on merits by a
detailed order dated 21.9.2007. The Court held that the
appellant had not substantiated his allegations against the
H Chairman and the Executive Trustee that they had acted against
DR. T. VARGHESE GEORGE v. KORA K. GEORGE &1091
ORS. [H.L. GOKHALE, J.]
the interest of the trust or had mis-managed its affairs. A
Therefore, there was no justification for appointing a receiver
for the trust. The High Court held that even assuming that there
was any irregularity in the sale of 5 acres of land and that the
price fetched was less, it was open to the appellant to seek
appropriate remedy before the appropriate forum. B
(ii) CMP No.10340 and 10341 of 2005 were filed by one
Shri V.G. Panneerselvam and Shri C.V.W Davidson to join in
the proceeding as additional applicants. However, since CMP
Nos. 5673 of 2003, 5560 of 2005 and 9402 of 2006 were being
dismissed on merits, the Court did not entertain these two C
CMPs also. These two CMPs for impleadment were therefore
disposed of alongwith the said common order. This common
order dated 21.9.2007 has led to SLP Nos.22590 and 22591
of 2007. They are being heard and decided along with Civil
Appeal No. 6786 of 2003. D
Submissions by the rival parties -
17. Shri K. Subramanian, Senior Advocate, appeared for
the appellant. Respondent No. 9 and 10 i.e. T. Thomas E
Educational Trust as represented by its Executive Trustee, Shri.
S. Palamalai and its Chairman Justice J. Kanakaraj, have been
joined in this matter vide this Court's order dated 22.8.2003.
Shri M.S. Ganesh, Senior Advocate has represented them.
18. The principle submission on behalf of the appellant has F
been that the T. Thomas Educational Trust is a minority
institution and the High Court has erred in appointing Shri S.
Palamalai, a non-christian as the Executive Trustee and
Correspondent of the Trust. In support of his submission that it
is a minority institution, Shri Subramanian, learned senior G
counsel appearing for the appellant submitted that the trust was
found by Late Shri T. Thomas who was a Christian. The school
started by him was named as St. Mary's School. Subsequently,
three schools belonging to this trust obtained a certificate of
being minority schools under the Tamil Nadu Recognised H
1092 SUPREME COURT REPORTS [2011] 12 S.C.R.
A Private Schools (Regulation) Act, 1973 (Tamil Nadu Act) from
a Civil Court which had been left undisturbed in appeal also.
All these factors were ignored by the High Court in passing the
impugned order. In his submission the High Court should not
have accepted the scheme proposed by Justice J. Kankaraj.
B
19. Shri Subramanian submitted that Article 30 (1) of the
Constitution of India gives a fundamental right to the minorities
to establish and administer educational institutions of their
choice, and this right should not be allowed to be diluted. He
relied upon a judgment of a Constitution Bench of this Court in
C State of Kera/a Vs. Very Rev. Mother Provincial reported in
[1970 (2) SCC 417], and particularly paragraph 8 thereof. This
paragraph reads as follows:-
"8. Article 30(1) has been construed before by this
D Court. Without referring to those cases it is sufficient to say
that the clause contemplates two rights which are
separated in point of time. The first right is the initial right
to establish institutions of the minority's choice.
Establishment here means the bringing into being of an
E institution and it must be by a minority community. It matters
not if a single philanthropic individual with his own means,
founds the institution or the community at large contributes
the funds. The position in law is the same and the intention
in either case must be to found an institution for the benefit
F of a minority community by a member of that community.
It is equally irrelevant that in addition to the minority
community others from other minority communities or even
from the majority community can take advantage of these
institutions. Such other communities bring in income and
they do not have to be turned away to enjoy the protection."
G
20. Thereafter, he referred to the judgment in the case of
Secretary, Malankara Syrian Catholic College Vs. T. Jose
and others reported in [2007 (1) SCC 386], wherein one of us
(R.V. Raveendran, J.) was a member of the Bench. The
H
DR. T. VARGHESE GEORGE v. KORA K. GEORGE &1093
ORS. [H.L. GOKHALE, J.]
Counsel submitted that in paragraph 19, this Court had A
summarised the general principles relating to establishment
and administration of educational institutions by minorities. The
principle (i) (a) laid down therein reads as follows:-
"(i) The right of minorities to establish and administer B
educational institutions of their choice comprises the
following rights: ·
(a) to choose its governing body in whom the
founders of the institution have faith and confidence to
conduct and manage the affairs of the institution;" C
He submitted that the correspondent appointed under the
impugned order could not be said to be person in whom the
founders would have had confidence. In any case, Smt.
Elizabeth wife of the founder did not have confidence in him. D
He drew our attention to the observations of this Court in
paragraph 63 (6) of the judgment in Al/ Saints' High School,
Hyderabad and others Vs. Government of Andhra Pradesh
reported in [1980 (2) sec 478] to submit that introduction of
an outside authority however high in the governing body would E
be destructive of the fundamental right guaranteed by Article
30 (1) of the Constitution. In his submission, the proper course
must be to consider the past history of the i.nstitution and the
way in which the management has been carried out herein
before as was laid down by the Privy Council in MD. Ismail Ariff F
and others Vs. Ahmed Moo/la Dawood and another reported
in [AIR 1916 P.C. 132]. This being the position, in his
submission the order of appointment of the Executive Trustee
was vitiated. The High Court had not discharged its function
under Section 92 of CPC correctly, and therefore, this Court
ought to interfere and set-aside the impugned judgment and F
order, and if necessary, remand the matter to the High Court
for re-consideration. He also drew our attention to some of the
allegations of mis-management against the Chairman and
correspondent.
H
1094 SUPREME COURT REPORTS [2011] 12 S.C.R.
A 21. Shri M.S. Ganesh, learned senior counsel appearing
for the Chairman and the correspondent of the trust on the other
hand submitted that the appellant was working at cross
purposes with the trust, and this fact should not be lost sight
of. The appellant claims to have arranged contributions of lakhs
B of rupees to the trust when Smt. Elizabeth Thomas was in the
management, and has subsequently started claiming those
amounts from the present management. On 24.2.2003, he sent
a fax message demanding lakhs of rupees from the trust, and
when Shri S. Palamalai visited Kottayam, the appellant
c threatened him to return the .amounts which led the
correspondent to lodge a complaint with the police on
26.2.2003. Smt. Elizabeth Thomas and the appellant were hand
in gloves, and, therefore although she withdrew her appeal to
this Court, she recommended the appellant for being taken in
the formal meetings of the board by her letter dated 22.1.2003,
0
and in spite of the above referred incident on 26.2.2003 she
once again wrote to the Chairman of trust that his m.oneys be
returned.
22. Apart from this aspect, Shri Ganesh pointed out the
E fact that this trust is a secular public trust for the purposes of
education, is wrif large in the document of the trust as well as
its activities. He pointed out that the trust deed permits receiving
of funds from anybody, it does not anywhere state that it is set
up in the interest of any minority community having a separate
F culture of its own. On the other hand para 10 of the trust
document specifically states that its funds will be utilized for
encouraging the deserving and poor students, irrespective of
caste, creed or religion. All throughout the findings on this
aspect have been very clear. The single Judge has held that it
G was a public charitable trust and not a minority institution. That
view was accepted by a Division Bench, and reaffirmed by a
bench of three judges of this Court. That being so there was
no occasion to reopen the issue any more.
H
DR. T. VARGHESE GEORGE v. KORA K. GEORGE 1095
& ORS. [H.L. GOKHALE, J.] ·
23. With respect to the orders of being minority institutions A
obtained by three schools of the trust under the Tamil Nadu Act,
Shri Ganesh submitted that at the highest those orders will have
to be read as obtained for the purposes of that statute, though
in his submission the orders were obtained from an authority
viz. the Civil Court which did not have the jurisdiction to issue B
such orders. In any case, the orders could not be used for the
purposes of restricting the objective of the trust, and for making
a submission that the trust is a minority institution. The intention
of the founder of the trust must be correctly understood and
given utmost importance, which is what the Court had done in c
this matter all throughout. He relied upon the judgment of a
Constitution Bench in S. Azeez Basha Vs. Union of India
reported in [AIR 1968 SC 662] where in the context of Article·
30(1) this Court observed in paragraph 19 as follows:-
"19 ....... The Article in our opinion clearly shows that the D
minority will have the right to administer educational
institutions of their choice provided they have established
them, but not otherwise. The article cannot be read, to
mean that even if the educational institution has been
established by somebody else, any religious minority E
would have the right to administer it because, for some
reason or other, it might have been administering it
before the Constitution came into force. The words
"establish and administer" in tile. article must be read
conjunctively and so read it gives the right to the minority F
to administer an educational institution provided it has
been established by it. ...... We are of opinion that nothing
in that case justifies the contention raised of behalf of the
petitioners that the minorities would have the right to
administer an educational institution even though the G
institution may not have been established by them. The two
words in Article 30(1) must be read together and so read
the Article gives this right to the minority to administer
institutions established by it. If the educational institution
H
1096 SUPREME COURT REPORTS [2011] 12 S.C.R.
A has not been established by a minority it cannot claim the
right to administer it under Article 30(1 )..... "
(emphasis supplied)
\
Shri Ganesh submitted that as the proposition states, if an
B educational institution is established by somebody else, a
religious minority does not acquire the right to administer it only
on the ground that for some reason or the other, it might be
administering it. In the instant case, though the trust is
constituted by a person belonging to a religious minority, he
C created a secular trust. He has specifically stated that its
income is not to be utilized for the benefit of students belonging
to any particular community. The objects of the trust in no way
state that the trust is set up in the interest of any minority having
a distinct culture within the meaning of Article 29(1) of the
D Constitution.
23. He referred to a recent judgment of this Court in TM.A.
Pai Foundation and others Vs. State cf Kamataka and others
reported in [2002 (8) sec 481], and particularly paragraph 117
E thereof where this Court referred to the judgment in Ahmedabad
St. Xavier's College Society Vs. State of Gujarat reported in
[1974 (1) SCC 717] which reiterated the observations of Das,
CJ in Kera/a Education Bill [AIR 1958 SC 956] to the effect·
that right to administer is to be tempered with regulatory
measures to facilitate. smooth administration. The right to
F manage a minority institution does not mean a right to
mismanage the same. He also made a wider submission
based on the observations of a Constitution Bench of this Court
in Commissioner Hindu Religious Endowments, Madras Vs.
Shri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt reported
G in [1954 (5) SCR 1005], where in the context of Article 26 (b)
of the Constitution, it is observed at page 1023 that "it is clear
therefore that questions merely relating to administration of
properties belonging to a religious group or institutions are
not matter of religion to which clause (b) of the Article applies."
H In his submission administration of an educational trust is a
DR. T. VARGHESE GEORGE v. KORA K. GEORGE &1097
ORS. [H.L. GOKHALE, J.]
another religion cannot amount to any infringement of the right . A
of a minority under Article 30 (1) of the Constitution.
Consideration of the rival submissions -
24. We have noted the submissions of both the counsel.
To begin with, we would like to refer to the provision of Section 8
92 of CPC whereunder the proceedings leading to these
appeals were initiated. This Section reads as follows:-
"92. Public charities - (1) In the case of any alleged
breach of any express or constructive trust created for C
public purposes of a charitable or religious nature, or
where the direction of the Court is deemed necessary for
the administration of any such trust, the Advocate-General,
or two or more persons having an interest in the trust and
having obtained the [leave of the Court] may institute a suit, o
whether contentious or not, in the principal Civil Court of
original jurisdiction or in any other Court empowered in that
behalf by the State Government within the local limits of
whose jurisdiction the whole or any part of the subject-
matter of the trust is situate to obtain a decree- E
(a) removing any trustee;
(b) appointing a new trustee;
(c) vesting any property in a trustee;
F
[(cc) directing a trustee who has been removed or a
person who has ceased to be a trustee, to deliver
possession of any trust property in his possession
to the person entitled to the possession of such
property;] G
(d) directing accounts and inquiries;
(e) declaring what proportion of the trust property or of
the interest therein shall be allocated to any H
1098 SUPREME COURT REPORTS [2011] 12 S.C.R.
A particular object of the trust;
(f) authorizing the whole or any part of the trust property
to be let, sold, mortgaged or exchanged;
(g) settling a scheme; or
B
(h) granting such further or other relief as the nature of
the case may require.
(2) Save as provided by the Religious Endowments
Act, 1863 (20 of 1863), [or by any corresponding law in
c force in [the territories which, immediately before the 1st
specified in sub-section (1) shall be instituted in respect
of any such trust as is therein referred to except in
conformity with the provisions of that sub-section.
D (3) The Court may alter the original purposes of an
express or constructive trust created for public purposes
of a charitable or religious nature and allow the property
or income of such trust or any portion thereof to be applied
cypres in one or more of the following, circumstances,
E namely:-
(a) where the original purposes of the trust, in whole or
in part,-
(i) have been, as far as may be, fulfilled; or
F
(ii) cannot be carried out at all, or cannot be
carried out according to the directions given
in the instrument creating the trust or, where
there is no such instrument; according to the
G spirit of the trust; or
(b) where the original purposes of the trust prqvide a
use for a part only of the property available by virtue
of the trust; or
H (c) where the property available by virtue of the trust and
DR. T. VARGHESE GEORGE v. KORA K. GEORGE 1099
& ORS. [H.L. GOKHALE, J.]
(c) where the property available by virtue of the trust and A
other property applicable for similar purposes can
be more effectively used in conjunction with, an to
that end can suitably be made applicable to any
other'purpose, regard being had to the spirit of the
trust and its applicability to common purposes; or B
(d) where the original purposes, in whole or in part,
were laid down by reference to an area which then
was, but has since ceased to be, a unit for such
purposes; or
c
(e) where the original purposes, in whole or in part,
have, since they were laid down,-
(i) been adequately provided for by other
means, or D
(ii) ceased, as being useless or harmful to the
community, or
(iii) ceased to be, in law, charitable; or
E
(iv) ceased in any other way to provide a suitable
and effective method of using the property
available by virtue of the trust, regard being
had to the spirit of the trust]."
25. As can be seen from this Section two or more persons F
having interest in the trust may institute a suit in the principle
civil court of original jurisdiction to obtain a decree concerning
a public charity for various purposes mentioned therein. Such
suit will lie where these persons make out a case of alleged
breach of any trust created for public purposes or for directions G
of the Court for administration of the trust. One of the purposes
set out in sub-section (1) (g) is settling a scheme, sub-section
(b) speaks about a new trustee being appointed, and sub-
section (a) speaks about removing a trustee. Outof the three
persons who filed the Civil Suit No.601 of 1987, Shri D.V.D. H
1100 SUPREME COURT REPORTS [2011] 12 S.C.R.
A Monte was a member of the Board of Trustees nominated by
the founder Shri T. Thomas himself. Shri Kora K. George is a
brother-in-law of Shri T. Thomas. He has raised funds for buying
lands for the institution, and for constructing the buildings of the
school. Therefore, although the single Judge held that he could
B not be said to be a person having interest in the trust, that
finding was reversed by the Division Bench in OSA No.49 of
1995. Dr. Natrajan is a parent of a student of the institution. None
of these persons can be criticized as persons lacking good
intention· for the trust.
c 26. Sub-section (2) of Section 92 lays down that a suit
claiming any of the reliefs specified in sub-section (1) has to
be instituted in conformity with that sub-section. Such suit
having been filed, the Trial Court gave a finding that it was a
public trust and not a minority institution. That finding has been
D left undisturbed by the High Court, and confirmed by a bench
of three judges of this Court. Although, the Trial Court declined
to accept the principle prayer of Shri Kora K. George and
others, the Division Bench in appeal realised that an
appropriate scheme for the administration of the trust was
E necessary. The Court, therefore, framed the scheme
considering the objects of the trust by its order dated 4.12.1995.
27. It is material to note that the Division Bench had
framed the scheme by its order dated 4.12.1995, after calling
F upon Smt. Elizabeth Thomas to give her proposals which she
had declined to do so. Still, with a view only to give one more
opportunity to her, this Court remanded the matter once again
to the High Court. The Division Bench of the High Court which
heard the matter after remand appointed Justice J. Kankaraj,
G a retired Judge of Madras High Court as the interim Chairman,
and a retired IAS Office Shri Palamalai as the Executive
Trustee and Correspondent in April 2002. Hon'ble Justice J.
Kankaraj made the necessary reports to the Division Bench
and pointed out that Smt. Elizabeth was mis-managing the trust.
The Division Bench considered all the aspects and proposals
H
DR. T. VARGHESE GEORGE v. KORA K. GEORGE &1101
ORS. [H.L. GOKHALE, J.]
including that of Smt. Eliiabeth Thomas for framing the scheme A
and framed an appropriate scheme by its order dated
5.12.2002. Apart from the appellant, and Smt. Elizabeth hardly
anybody has raised any ,grievance with respect to the
functioning of the Chairman or the Correspondent. The appellant
did not choose to initiate any proceedings with respect to the B
functioning of the trust as required under Section 92. After the
scheme was finalized, although Smt. Elizabeth filed an appeal,
she withdrew the same. It was at this stage that the appellant
filed the present appeal raising the issues that he has raised.
The correct course of action for him ought to have been to file c
his suit under Section 92, if he deemed it fit.
28. As can be seen from the narration above, as far as
the character of the trust as a secular public trust is concerned,
that view was taken initially by a learned Single Judge.
Subsequently, it was confirmed by a Division Bench as well as D
by a bench of three judges of this Court. The fact that the trust
was set up by Late Shri T. Thomas who belongs to a religious
minority was very much there before the Courts all throughout.
The fact that three schools of this trust had obtained a certificate
of minority character was canvassed before the single Judge, ·E
and in spite of that submission the single judge gave a finding
that the trust was not a minority trust. He recognised the secular
character of the institution, particularly by referring to Clause 10
of the declaration made by the founder. The specific finding on
concerned issues No. 6 and 7 was left undisturbed by a F
Division Bench of the High Court in appeal and reaffirmed by
a bench of three judges of this Court. Smt. Elizabeth did not
file any appeal on this finding of the single Judge to the Division
Bench of the High Court. This Court has already confirmed that
finding. Explanation IV to Section 11 of Code of CPC clearly G
lays down that any matter which might and ought to have been
made ground of defence or attack in such former suit shall be
deemed to have been a matter directly and substantially in issue
in such latter suit, and a Civil Court cannot try the same issue
once again between the same parties or between the parties H
1102 SUPREME COURT REPORTS [2011] 12 S.C.R.
A under whom they were litigating. The same proposition applies
to issue estoppel. Such a view has been taken by this Court in
Shiromani Gurdwara Parbandhak Committee Vs. Mahant
Harnam Singh reported in [2003 (11) SCC 377]. In that matter
this Court was concerned with the issue as to whether a
B particular sect could be regarded as a sect belonging to the
Sikh religion. That issue had already been decided in Mahant
Harnam Vs. Gurdial Singh reported in [AIR 1967 SC 1415].
At the end of para 17, of its Judgment this Court, therefore, held
as follows:-
c "The factual findings relating to the nature and
character of the institutions, specifically, found on an
elaborate review of the governing legal principles as well,
and which have reached finality cannot be reagitated and
the same is precluded on the principle of "issue estoppe/"
D also. As has been rightly contended by the learned
counsel for the respondents, decisions rendered on the
peculiar fact situation specifically found to exist therein
cannot have any irreversible application."
E This being the position, the issue with respect to the character
of the trust as a Secular Education Trust cannot be permitted
to be reopened.
29. Then comes the question as to whether the orders
obtained under the above referred Tamil Nadu Act by three
F schools belonging to the trust can make any difference. It is
necessary to note in this connection that these orders were
obtained from a Civil Court and were confirmed in appeal.
However, we must note that a recognition of a school as a
minority school is to be obtained from a competent authority
G under Section 11 of that Act, and not from any Civil Court, and
any party aggrieved by non-grant thereof has a right of appeal
under Section 41 of that Act to the prescribed Authority. Section
53 of the Act clearly lays down that no Civil Court shall have
jurisdiction to decide or deal with any question which is by or
H under this Act required to be decided or dealt with by an
DR. T. VARGHESE GEORGE v. KORA K. GEORGE 1103
& ORS. [H.L. GOKHALE, J.]
authority or officer mentioned in this Act. Thus, prima facie, it A
would appear that the orders were obtained from a forum non-
juris. The reliance on the judgments of the Civil Court though
pressed into service before the single Judge were not taken
as a relevant factor for deciding the minority character of the
trust. Now, that this submission is being reiterated, Shri Ganesh B
has submitted with some force that these orders are from a
Court without any jurisdiction. We must note in this connection,
that the statement of objects and reasons of the Act states that
the act was passed to regulate the service conditions of the
teaching and non-teaching staff in private schools and in that c
context some separate provisions were made for the minority
schools. In the present case, though the declaration was
claimed under the Tamil Nadu Act, it was not obtained from an
authority specifically created for that purpose under the act to
give such a status declaration. Therefore, in our understanding
0
these orders cannot be used for determining the character of
the trust. It is also relevant to note that these orders were
obtained after the demise of the founder and not during his life
time.
30. With respect to an outsider coming in the E
management, it is to be seen that the founder had not
designated any of the persons on the board by their religion.
Thus, he nominated all the persons in their ex-officio capacity
as follows:- (a) Principal of the school (ex-officio), (b)
Headmaster/Headmistress, (c) Warden of the Hostel (ex- F
officio), (d) Member elected by the parent association, (e)
Member elected from the staff council, and (f) Three persons
having high standard in the education field nominated by the
first five. When one sees the formation of this board, one just
cannot say thathersons other than Christians cannot be in the G
management of the institution. Incidentally, we may note that the
nominated Chairman Justice J. Kanakraj, son of Late P. Jacob
is a Christian. The objection of the appellant appears to be only
on the basis of the religion of S. Palamalai, the Executive
Trustee and Correspondent of the trust. H
1104 SUPREME COURT REPORTS [2011] 12 S.C.R.
A 31. Paragraph 8 of Very Rev. Mother Provincial quoted
above lays down two tests. The negative test is that a
contribution from other communities to a minority institution and
conferring of benefits of the institution to the majority community
are not the factors which matter in deciding the minority
s character of the institution. The positive test is that the intention
in founding the institution must be to found an institution for the
benefit of a minority community. As far as, these negative
testes are concerned, they can be said to be satisfied in the
present case. But the positive test which is more significant
C namely that the intention must be to found an institution for the
benefit of a minority community, is not satisfied. We do not find
anywhere in the initial declaration made by the founder that the
institution was to be a minority institution. All the trustees
nominated were on ex-officio basis or on the basis of their
qualifications and not on the basis of religion. The funds and
0
income was to be utilized for encouraging poor and deserving
students irrespective of caste, creed or religion. It is nowhere
stated in that declaration that the trust was being created for
the benefit of the Christian community. Thus the proposition in
Very Rev. Mother Provincial in fact goes against the appellant.
E
32. In the facts of the present case, we may not be required
to go to the extreme as canvassed by Shri Ganesh based on
the quotation from judgment in the case of Shirur Mutt (supra).
But, we cannot ignore the proposition laid down in S. Azeez
F Basha (supra) namely that if an institution is established by
somebody else, meaning thereby a person belonging to
another religion or a secular person, a religious minority can
not claim the right to administer it on the basis of Article 30(1)
merely because he belongs to a minority or for some reason
G or the other people of a minority might have been administering
it. In the instant case the approach of the founder is clearly seen
to be a secular approach and he did not create the trust with
any restricted benefits for a religious community. Merely
because he belongs to a particular faith, the persons belonging
H to that faith cannot claim exclusive right to administer the trust.
DR. T. VARGHESE GEORGE v. KORA K. GEORGE 1105·-
& ORS. [H.L. GOKHALE, J.]
The establishment and administration must be both by and for A-
a minority which is not so in the present case. Similarly, it is
material to note as observed in sub para (ii) and (iii) of para
19 in Malankara Syrian Catholic College (supra), the right
conferred on minorities under Article 30 is only to ensure
equality with the majority and not intended to place the B
minorities in a more advantageous position vis-a-vis the
majority. The right to establish and administer educational
institution does not include the right to maladminister. This being
the position in the present case, there is no occasion for us to
apply the propositions in para 63 (6) of All Saints' High School c
judgment (supra) or the one in the case of MD. Ismael (supra).
33. Having seen the scenario and the legal position, in the
facts and circumstances of the present case, in our view there
was no error in the impugned judgment of the Division Bench
of Madras High Court dated 5.12.2002 on O.S.A 49 of 1995 D
in holding that T. Thomas Educational Trust is a secular public
charitable trust and not a minority institution. The High Court
was accordingly justified in framing the scheme under Section
92 of CPC to see to it that the trust is administered in a better
way. We find the scheme to be in the interest of the trust. We E
have perused the common order of the Division Bench dated
21.9.2007 in CMP Nos. 5673 of 2003, 5560 of 2005, 9402 of
2006 and CMP No. 10340 and 10341 of2005. The High Court
has held on merits that the appellant had failed to make out any
case of mis-management against the Chairman or the F
correspondent, and we do not find any error in the High Court
order in that behalf. We do not find any merit in the Contempt
Petition No. 435 of 2004 either. In the circumstances, Civil
Appeal No. 6786 of 2003, Special Leave Petition (C) Nos.
22590-22591 OF 2007 and Contempt Petition (C) No. 435 of G
2004 are all dismissed. There will however be no order as to
costs.
R.P. Matters dismissed.
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