# Sansthapak Mandal, G.B. Pant Degree College and another v. The Assistant Registrar, Firm, Societies & Chits Gorakhpur & others

- **Citation:** (2004) 1 ILRA 288
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-03-17
- **Case number:** Civil Misc. Writ Petition No. 10541 of 1990
- **Bench:** Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sansthapak-mandal-g-b-pant-degree-college-and-another-v-the-assistant-registrar-40348
- **Pages:** 9

## Headnote

Sri Dr. R.G. Padia
Sri Prakash Padia
Sri S.P. Singh
Sri D.S.N. Tripathi
Sri P.N. Tripathi
Sri P.C. Srivastava
Sri Dinesh Dwivedi
S.C.

Societies Registration Act-S.-25- Death
of founder President of Society-Dispute
as to President ship of Sansthapak
Mandal
of
Society-Appointment
of
respondent no. 2 as President of SocietyWrit Petition challenging appointmentHeld, dispute with regard to electionquestion of President of Sanshthapak
Mandal must be decided by Prescribed
Authority under S.25 of the Act-Direction
issued to Assistant Registrar to refer
dispute to Prescribed Authority.

Held: Para 32
In such, circumstances, the dispute with
regard to the election on the post of
President of the Sansthapak Mandal
should necessarily be decided by the
Prescribed Authority under Section 25 of
the
Societies
Registration
Act
and
Assistant Registrar is directed to refer
the said dispute for adjudication to the
Prescribed Authority within a period of
one month from the date a certified copy
of this order is produced before him and
the Prescribed Authority in turn shall
decide the dispute within four months
thereafter, after affording opportunity of
hearing to the parties

## Text

288 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
judgment of the court below dated
23.11.1993 is set aside and the matter is
remanded back to the court below for a
fresh decision in accordance with law.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.3.2004

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 10541 of 1990

Sansthapak Mandal, G.B. Pant Degree
College and another
 ...Petitioners
Versus
The Assistant Registrar, Firm, Societies &
Chits Gorakhpur & others ...Respondents

Counsel for the Petitioners:
Sri V.B. Singh
Sri P.S. Baghel
Sri S.K. Sharma

Counsel for the Respondents:
Sri Dr. R.G. Padia
Sri Prakash Padia
Sri S.P. Singh
Sri D.S.N. Tripathi
Sri P.N. Tripathi
Sri P.C. Srivastava
Sri Dinesh Dwivedi
S.C.

Societies Registration Act-S.-25- Death
of founder President of Society-Dispute
as to President ship of Sansthapak
Mandal
of
Society-Appointment
of
respondent no. 2 as President of SocietyWrit Petition challenging appointmentHeld, dispute with regard to electionquestion of President of Sanshthapak
Mandal must be decided by Prescribed
Authority under S.25 of the Act-Direction
issued to Assistant Registrar to refer
dispute to Prescribed Authority.

Held: Para 32
In such, circumstances, the dispute with
regard to the election on the post of
President of the Sansthapak Mandal
should necessarily be decided by the
Prescribed Authority under Section 25 of
the
Societies
Registration
Act
and
Assistant Registrar is directed to refer
the said dispute for adjudication to the
Prescribed Authority within a period of
one month from the date a certified copy
of this order is produced before him and
the Prescribed Authority in turn shall
decide the dispute within four months
thereafter, after affording opportunity of
hearing to the parties

(Delivered by Hon'ble Arun Tandon, J.)

1. Heard Sri P.S. Baghel on behalf
of the petitioner, Dr. R.G. Padia, Senior
Advocate, assisted by Sri P. Padia, Sri
D.S.N. Tripathi and Sri P.C. Srivastava on
behalf of the respondent Anil Kumar
Upadhyaya in both the writ petitions.

2. The dispute giving rise to this
case has a checkered history. The relevant
fact for decision of dispute are as
follows:-

3.

One
Sri
Bateshwar
Nath
Upadhyaya was the founder President of
the society registered by name of
Sansthapak Mandal, duly registered under
the Societies Registration Act. There was
absolutely no dispute with regard to the
office bearer of the said society till the life
time of Sri Bateshwar Nath Upathdyaya,
who was life President of the society,
expired in the year, 1986. On death of Sri
Upadhyaya, the petitioner Sri Arun
Kumar Upadhyaya, who claims himself to
be one of the life member of the society,
has set up his claim as President of the
society. On the other hand Sri Anil Kumar
Upadhyaya respondent no. 2 claims that
in accordance with the registered bye laws
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1 All] Sansthapak Mandal, G.B. Pant Degree College & anr. V. The A.R., Gorakhpur & ors. 289
of the society, under Clause 1D, he was
appointed as member to fill the vacancy
caused due to death of his father in the
Sansthapak Mandal and because of his
such
appointment
he
automatically
became the President of the Society.

4. The Assistant Registrar, Basti
issued a letter dated 20.11.1987 wherein
he recognized Sri Anil Kumar Upadhyaya
as President of the Sansthapak Mandal.
Against the said order of the Assistant
Registrar a writ petition no. 23943 of
1987
was
filed
by
Arun
Kumar
Upadhyaya before this Court. The writ
petition was disposed of by this Court
after holding that the document dated 20
November, 1987 was only a letter seeking
information and the Assistant Registrar
was directed by this Court to decide the
matter afresh in accordance with law.

5.

Surprisingly
the
Assistant
Registrar, despite the aforesaid order of
this Court, passed another order on 9th
August, 1988 holding therein that earlier
letter dated 20th November, 1987 was an
order and the said order has been passed
rightly recognizing Sri Anil Kumar
Upadhyaya as the President of the
Society.

6. Against the order dated 9th
August, 1988 the present writ petitioner
filed writ petition no. 12034 of 1988. The
said writ petition was allowed by the
Division Bench and the matter was
remanded to the Assistant Registrar to
decide the dispute afresh after hearing the
parties strictly in compliance of the order
of this Court dated 28th April, 1988
referred to above.

7. The Assistant Registrar thereafter
passed another order dated 9th August,
1988 whereby he again struck to his
earlier order dated 28th April, 1987 and
held that he had rightly recognized Sri
Anil Kumar Upadhyay as the President
after the death of Sri Bateshwar Nath
Upadhyaya.

8. Against the aforesaid order of the
Assistant Registrar the present writ
petitioner filed the writ petition no. nil of
1988, which was decided by this Court on
4th October, 1988 itself. The Court after
quashing the order dated 9th August, 1988
directed that the matter be decided afresh
by an Assistant Registrar other than one
who had passed the order dated 9th
August, 1988 after nomination from the
Registrar. The Assistant Registrar was
further directed as follows:-

"In the result this petition succeeds
and is allowed. A direction is issued to the
Registrar to nominate any other Assistant
Registrar than the Assistant Registrar who
had decided the dispute, to examine the
matter afresh and in case he comes to the
conclusion that the dispute relates to
election of Committee of Management or
continuance of office bearers than he
should refer the case to the Prescribed
Authority and if he comes to the
conclusion that it was not a matter of
substitution
of
Bateshwar
Nath
Upadhyasya then he could be decide as to
who amongst the petitioner and opposite
party no. 3 was substituted by an election
to be the President of the Society. It
should be decided after hearing both the
parties. The Registrar shall appoint
another Assistant Registrar within a
period of two weeks from the date a copy
of his order is produced before him. A
copy of this shall be produced before him
within two weeks from today. The
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290 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
Assistant Registrar shall decide the
dispute within two months thereafter."

9. Against the aforesaid order of the
Division Bench a special leave petition
no. 1290 of 1988 was filed before the
Hon'ble Supreme Court of India which
was dismissed by the Hon'ble Supreme
Court on 27.7.1999 and it was provided
that the Assistant Registrar shall decide
the question afresh as per the direction of
the High Court.

10. In compliance of the order of
this Court referred to above, the dispute
was
referred
to Assistant
Registrar
Gorakhpur.
The
Assistant
Registrar,
Gorakhpur per order dated 29th January,
1990 has held that the controversy
involved was with regard to substitution
of member in place of Bateshwar Nath
Upadhyaya
and
since
Anil
Kumar
Upadhyaya was held to have been
substituted in place of his father, he
automatically became the President of the
Sansthapak Mandal.

11. In such circumstances, it is held
by the Assistant Registrar that there is no
question of any dispute being referred to
the Prescribed Authority under Section 25
of the Societies Registration Act and he
has decided the matter himself in the light
of the observations of the judgment of the
Division Bench referred to above, in stead
of referring the matter to the Prescribed
Authority under Section 25 of the
Societies Registration Act. Hence the
present writ petition.

12. On behalf of the petitioner it has
been contended by Sri P.S. Baghel that
the order passed by the Assistant
Registrar is totally misconceived and is
based on misreading of the provisions of
Clause 1D of the bye laws. It is stated that
the Clause 1D of the registered bye laws
remained unamended. Because of the
misreading of the provisions of Clause 3D
of the bye laws, the Assistant Registrar
has misdirected himself in recording the
finding that because of substitution of Sri
Anil Kumar Upadhyaya as member in the
Sansthapak Mandal in place of his father
Sri Bateshwar Nath Upadhyaya, he
automatically became the President of the
Sansthapak Mandal. It is also contended
that the finding recorded by the Assistant
Registrar with regards to question marked
as 'Gha' that Anil Kumar Upadhyaya
alone was eligible member for being
substituted in place of his father and there
after the question of substitution of Vinod
Kumar Upadhyaya (grandson of late
Bateshwar Nath Upadhyaya) does not
arise, is based on misreading of the
judgment of this Court specifically in the
paragraph reproduced in the order of the
Assistant Registrar itself.

13. On behalf of the respondent it
has been submitted by Dr. R.G. Padia that
Clause 1C of the bye laws/memorandum
of association cannot be altered in view of
the provisions of Section 4(a) read with
Section 12(b) of the Societies Registration
Act. It is further contended that unless and
until the change in the memorandum is
registered with the Registrar in view of
the provisions of Section 12 (b)(2) of the
Societies Registration Act, the petitioner
Arun Kumar, who was not one of the life
member of the Sansthapak Mandal, can
never claim to be elected as President of
the society nor his claim, as such, could
be entertained by the Assistant Registrar.

14. It is contended that so far as the
appointment
of
Sri
Anil
Kumar
Upadhyaya, in place of his father
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1 All] Sansthapak Mandal, G.B. Pant Degree College & anr. V. The A.R., Gorakhpur & ors. 291
Bateshwar Nath Upadhyaya is concerned,
the same has gone uncontested and no one
has challenged the order of the Assistant
Registrar and it is not open to the
petitioner Arun Kumar to challenge the
said
finding
and
he
cannot claim
appointment in place of his father
Bateshwar Nath Upadhyaya. Lastly it is
contended
that
clause
1D
of
the
Memorandum of Association/bye laws
necessarily contemplates appointment to
the office of the nominated person against
the office which was held by the deceased
member. Meaning thereby that on death
of Sri Bateshwar Nath Upadhyaya, who
was the President of the society, if the
nomination of Anil Kumar Upadhyaya as
member is accepted to be legal, it
automatically means that Anil Kumar
Upadhyaya has been appointed President
of the society. In support of the contention
it is stated that there is no other provision
for election to the post of any office
bearer in the bye laws of the society.

15. Sri P.C. Srivastava, who appears
on behalf of Anil Kumar Upadhyaya has
contended that the bye laws which have
been enclosed along with the writ petition
are not registered bye laws of the
Sansthapak Mandal and the bye laws
which have been filed as Annexure CA-2
to his counter affidavit are the true bye
laws and in the said bye laws the name of
the petitioner is not mentioned as one of
the life member. Secondly he cannot
claim any right of election to the office of
President of the society.

16. After hearing counsel for the
parties and after going through the records
of the writ petitions, this Court is satisfied
that the contention raised on behalf of the
petitioner has force. For appreciating the
controversy
involved,
it
would
be
necessary to refer clause 3C and 3D of the
Rules and Regulation of the Sansthapak
Mandal, which are not in dispute between
the parties. It is pointed out that clause 3C
and 3D of the Rules of the Sansthapak
Mandal as enclosed by the petitioner as
Annexure-1 and clause 3C and 3D of the
Rules of the Sansthapak Mandal as
enclosed by the respondent no. 3
alongwith
his
counter
affidavit
are
identical in nature. However, there is only
change of the names of the persons
attached to the memorandum as life
member between the two set of bye laws,
which have been filed separately. Clause
3C, 3D, 4G, 4H and clause 7 of the
memorandum
also
have
relevance.
Clauses are quoted below:-

3C. The persons named in the
attached memorandum shall be life
members of sansthapak Mandal which
itself shall be a permanent Board of the
founders of the Institution and shall not
be subject to alteration so long as
institution exist.
3D. The vacancy caused by death
of
any
of
the
members
of
the
Sansthapak Mandal shall be filled in by
any capable members of his family.
4G. Vacancy caused by the
resignation of any member of the
Sansthapak Mandal shall be filed by
one of the life trustees of the Kisan
National Education Trust, Pratapganj,
Jaunpur, He shall be accepted by two
third majority of the members of the
Sansthapak Mandal.
4H. Vacancy
caused
by
the
resignation of any of the office bearers
of the Sansthapak Mandal shall be
filled by any one of the members of the
Sansthapak Mandal by two third
Majority of the members of the
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292 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
Sansthapak Mandal from its own
members by co-option.
7-Votes:- All question at a meeting
shall be decided by majority of votes
but in case of equality the vote,
President shall have a second vote. Vote
by proxy shall not be allowed but the
president shall put up for consideration
of the members any written opinion of
the absent member on any subject on
the agenda."

17. It is not in dispute between the
parties that there is absolutely no rules
under the bye laws providing for
procedure for election of the office bearer
of the Sansthapak Mandal

18. Clause 3C of the bye laws of the
Sansthapak Mandal referred to above
provides
that
life
member
of
the
Sansthapak
Mandal
shall
be
the
permanent member of the institution and
will not be subject to alteration so long as
to institution exists. Clause D referred to
above
contemplates
filling
of
the
vacancies caused due to death of any of
the member of the Sansthapak Mandal.

19. The member of the Sansthapak
Mandal can also be one of the office
bearer of the Sansthapak Mandal. Reading
of Clause D, as is exists, leave no room to
doubt that nomination of a family member
on the death of member of Sansthapak
Mandal would only be as member of the
Sansthapak Mandal. The provisions of
Rule 3D cannot be extended to read in the
manner suggested by the respondents, that
if member of the Sansthapak Mandal,
who was also one of the office bearer,
expires then the family member appointed
in his place would automatically become
the office bearer. If such interpretation is
accepted, it would mean that the office
bearer of the Sansthapak Mandal can
always be replaced by family member of
the earlier office bearers of the said
Sansthapak
Mandal
only.
Such
interpretation would lead to absurdity
inasmuch as in a given case the office
bearer, who is also a member of the
Sansthapak Mandal, expires and there is
no other person in his family available or
willing to fill up the vacancy so caused, it
would mean that the office would go
unattended and there would be no person
to be appointed as office bearer after his
death.

20. Logically it follows that if one
member of the Sansthapak Mandal
expires, he may or may not be an office
bearer, any member of his family can only
be substituted in his place as member of
the
Sansthapak
Mandal.
Such
a
substituted member cannot automatically
become
the
office
bearer
of
the
Sansthapak Mandal against the post
which was held by the member, who had
since expired.

21. In view of the said conclusion it
would be seen that the findings recorded
by
the
Assistant
Registrar
in
the
impugned order to the effect that because
of appointment of Sri Anil Kumar
Upadhyaya as member of the Sansthapak
Mandal in place of his father Bateshwar
Nath Upadhyaya he automatically became
the President of the Sansthapak Mandal,
is totally misconceived and unsustainable
in the eye of law. The Assistant Registrar
has misread the provisions of clause 3D
of the bye laws and as such the order
passed by him cannot be sustained. The
further finding recorded by the Assistant
Registrar with regard to the appointment
of Sri Anil Kumar Upadhyaya as member
of the Sansthapak Mandal on the basis of
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1 All] Sansthapak Mandal, G.B. Pant Degree College & anr. V. The A.R., Gorakhpur & ors. 293
the part of the paragraph of the judgment
of this Court, reproduced in the order, is
also based on misreading and complete
non-consideration of the judgment of the
High Court. The relevant paragraph of the
judgment of this Court reads as follows:-

"Admittedly
Bateshwar
Nath
Upadhya, the founder member and
President of the society died in 1986.
Under bye-law the vacancy caused due
to his death could be filled by any
capable member of his family. He is
survived by petitioner, who is Principal
of the college. Opposite party no. 3, a
Lecturer and other sons, two of whom
are in judicial service. There was thus
no derth of capable members. Dispute
however,
arose
between
the
two
brothers and both claimed to have been
elected on death of their father. The
petitioner claims to have been elected in
meeting held in 1986 whereas opposite
party claimed to have been elected in
1987.
Both
sent
their
list
for
registration under Section 4 of Societies
Registration Act. On 20th November,
1987, the Assistant Registrar issued a
letter against which petitioner came to
this court by way of Writ Petition No.
23943 of 1987. It was disposed of on
11th April, 1988 and Assistant Registrar
was directed to look into the matter
and decide dispute after hearing. It was
observed that the letter dated 20th
November, 1987 was not an order but
only
a
letter
seeking
certain
information. Despite this the Assistant
Registrar on 16th June, 1988 observed
in an answer given to opposite parties
on the query made by him about
renewal of registration certificate that
the order dated 20th November, 1987
recognising the list submitted by him
was still operative. This was act of
impropriety
on
part
of
Assistant
Registrar
as
this
court
having
constructed the letter as seeking certain
information
and
not
an
order
recognising the opposite party. List
which after explanation given by
opposite party has been accepted,
Prima-facie a list which contained not
only name of opposite party who claims
to have been elected after the death of
his father but was a list of different
persons than the person who were
members
of
the
Committee
of
Management as shown in the earlier list
could only establish that opposite party
was claiming that fresh elections had
taken place in which the new office
bearers had been elected. Such a
dispute could not have been decided by
the Assistant Registrar U/S 35 and it
could have been referred to the subdivisional Magistrate only."

22. The Assistant Registrar has only
reproduced underlined portion of the said
judgment for the purposes of recording
finding that Sri Anil Kumar Upadhyaya
was alone the eligible person for being
appointed in place of his father. This
Court had not recorded any such finding
as suggested in the order of the Assistant
Registrar. The High Court while referring
to the sons of Bateshwar Nath Upadhyaya
ad only illustrated the eligible person
amongst other who were available for
such an appointment. The High Court did
not confine the illegibility to the person
mentioned in the judgment of the High
Court only.

23. In such circumstances even
grandson
of
Sri
Bateshwar
Nath
Upadhyaya namely Vinod Kumar could
also be appointed as one of the member of
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294 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
the Sansthapak Mandal after the death of
Sri Bateshwar Nath Upadhyayaand Sri
Anil Kumar alone was not the eligible
candidate. It is further relevant to note
that the Assistant Registrar has not
noticed as to in what manner Sri Anil
Kumar has been appointed in place of his
father.

24. The Assistant Registrar has
failed to take into consideration scope of
the clause 7 of the bye laws, which
provides
that
all
decisions
of
the
Sansthapak Mandal shall be taken on the
basis of majority votes. Thus, if there
were more that one eligible family
member
of
Sri
Bateshwar
Nath
Upadhyaya for appointment after his
death as member of the Sansthapak
Mandal, it was necessary for the Assistant
Registrar to have looked into the record
and to have recorded a finding as to
whether Anil Kumar has been appointed
by any decision of the Sansthapak Mandal
by any majority vote or not.

25. In absence of any such fact
having noticed and in absence of any
finding having been recorded, the order
holding Sri Anil Kumar as President,
appointed in place of his father Sri
Bateshwar Nath Upadhyaya, cannot be
legally sustained.

26. From the finding recorded
above, it would be apparent that the issue
with regard to appointment of the
President, as claimed by the petitioner and
as that set up by Sri Anil Kumar
Upadhyaya on the strength of his
nomination as member of the Sansthapak
Mandal
requires
adjudication
by
a
Prescribed Authority under Section 25 of
the Societies Registration Act.

27. The issue as to whether the
petitioner has been validly elected in
accordance with the bye laws of the
society as President of the society on the
death of Sri Bateshwar Nath Upadhyaya
and the issue whether Anil Kumar
Upadhyaya was the only eligible member
entitled to such an appointment requires
decision, on the basis of evidence to be
led by parties, by Prescribed Authority
under Section 25 of the Societies
Registration Act.

28. Since it has been held that
merely on the strength of appointment as
member of the Sansthapak Mandal Anil
Kumar cannot claim himself to be the
President
of
the
Committee
of
Management to the Sansthapak Mandal,
the said issue is no more open and stands
decided against Anil Kumar Upadhyaya.
However, if Anil Kumar Upadhyaya sets
up any independent election for the post
of President, the said issue may also be
adjudicated upon by the Prescribed
Authority.

29. The contention raised on behalf
of the respondent to the effect that
amendments in clause 3C of the bye laws
of the society was legally not permissible
and is not correct. Clause 3C has already
been quoted hereinabove. This Court fail
to appreciate the general statement of fact
made on behalf of the respondent in
alleging that the said clause cannot be
amended. Section 2 read with Section 4A
and
Section
12
of
the
Societies
Registration Act leaves no room of doubt
that provisions of memorandum of
association including by lays, which are
attached there to, can be amended from
time to time. It is always open to the
member of the society to make such
amendment,
if
necessary,
including
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change in the name of life members in the
interest of the society.

30.

The
contention
of
the
respondents that the amendment in the
bye laws/3C of the Sansthapak Mandal
cannot take effect unless the said
amendments was registered with the
Registrar in view of the Section 12B(2) of
the U.P. Societies Registration Act,
proceeds on non-consideration of the fact
that Section 12A to 12D, including
Section 12B, were added by U.P. Act No.
52 of 1975 and they have prospective
application only. In such circumstances
the amendments made in the bye laws of
the society/memorandum of association
on 28th may, 1970, whereby clause 3C has
been amended, cannot be said to be
enforcible because of its non-registration
with the Registrar under Section 12B(2)
of the Societies Registration Act.

31. It is further pointed out that the
issue as to which of the bye laws, one
relied upon by the petitioner and another
one relied upon by the respondent no.3,
are genuine bye laws will also be a
subject matter of consideration before the
Prescribed Authority and while deciding
the issue as to whether the election of the
petitioner on the post of the President of
the society is valid, the Prescribed
Authority shall also record finding with
regard to genuineness of the bye laws as
set up by the parties.

32. In such, circumstances, the
dispute with regard to the election on the
post of President of the Sansthapak
Mandal should necessarily be decided by
the Prescribed Authority under Section 25
of the Societies Registration Act and
Assistant Registrar is directed to refer the
said dispute for adjudication to the
Prescribed Authority within a period of
one month from the date a certified copy
of this order is produced before him and
the Prescribed Authority in turn shall
decide the dispute within four months
thereafter, after affording opportunity of
hearing to the parties.

33. For the reasons stated above, the
writ petitions filed by the petitioner
deserves to be allowed. The order dated
29.1.1990 is hereby set aside. Under
interim order passed by this Court dated
26th April, 1990 there was a restrained
order, whereby Anil Kumar Upadhyaya
was restrained from working as President
of the Sansthapak Mandal and further
liberty was given to the Sansthapak
Mandal
to
hold
fresh
election
in
pursuance of the interim order of this
Court.

34. It is alleged by the petitioner that
fresh election was held on 12th August,
1990 in which the petitioner has again
elected as President. It is further stated
that the petitioner is continuously working
as President. On behalf of the respondent
Anil Kumar Upadhyaya election for the
post of President is also alleged to have
taken place in pursuance of the interim
order of this Court dated 30th April, 1990.
The validity of the aforesaid fresh
elections
would
depend
upon
the
judgment of the Prescribed Authority with
regard to the original election set up by
the parties, which have been referred
under order of this Court to the Prescribed
Authority under Section 25 of the
Societies Registration Act. The fresh
election held by the petitioner and the
respondent shall abide by the decision of
the Prescribed Authority referred to
above.

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296 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
35. In such circumstances, writ
petition is allowed. The order dated
29.1.1990 is hereby quashed. Interim
order, if any, stands discharged.

36. Till the decision of the
Prescribed Authority, referred to above,
parties shall maintain status quo as
prevailing till date with regards to office
of President of the Sansthapak Mandal.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.03.2004

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Second Appeal No.1669 of 1988

Manjoor Ali and another
...Appellants
Versus
Kishmat Ali and others ...Respondents

Counsel for the Appellants:
Sri N.C. Rajvanshi

Counsel for the Respondents:
Sri Irshad Ali

(A) Evidence Act, 1872-Ss 90 and 63Presumption
under-AvailabiltySecondary
evidence-Admissibility-Suit
for permanent basis of sale deed more
than 20 years old-Original sale deed not
produced-only copy filed-No statement
or evidence led by plaintiff to prove loss
or destructions of original sale deed-No
presumption as to execution under S. 90
can be drawn in favour of plaintiff.

Held: Para 11

Presumption of genuineness may be
raised where the document is produced
from a proper custody. However, in view
of the provisions of section 90 of the Act,
it is the discretion of the Court to accept
the presumption flowing from section
90. In the present case, the mere
production of the certified copy of the
sale deed was not by itself sufficient to
justify the presumption of the execution
of the original under section 90. The
provisions of section 90 has to be read
alongwith section 65 of the Act. Mere
production of a certified copy of the sale
deed
is
not
sufficient
to
draw
a
presumption under section 90. It must
be shown that the document produced
was a copy admitted as secondary
evidence under section 65 of the Act.

(B) Civil Procedure Code-S. 100- Second
appeal-concurrent findings of fact by
Courts below-No interference.

Held: Para 14 & 16

In the present case, the plaintiff has only
produced a copy of the sale deed and has
not stated in his plaint or led evidence,
nor laid the foundation for admission of
the secondary evidence by proving the
loss
or
destruction
of
the
original
document. Nothing has been shown by
the plaintiff-appellants as to why the
original
document
could
not
be
produced. Thus, the presumption under
section 90 could not be drawn in favour
of the plaintiff. I therefore, hold that in
the present case, the presumption under
section 90 of the Act, was not available
on the copy of the sale deed dated
16.5.1933.

On the question as to whether the sale
deed conferred any right to the plaintiffappellants, I find that both the Courts
below have given concurrent findings of
fact to the extent that the name of Mst.
Maida was never recorded in the revenue
records and that she had no right to
execute the sale deed in favour of the
plaintiffs' father. Further, the Courts
below
have
held
that
no
action
whatsoever was taken by the plaintiffs'
father or by the plaintiffs to get their
names mutated in the revenue records or
to take possession and therefore, the
sale deed was never acted upon. The
Courts below further found that Mst.
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