# DR. T. VARGHESE GEORGE v. KORA K. GEORGE & ORS

- **Citation:** [2011] 12 S.C.R. 1070
- **Court:** Supreme Court of India
- **Decided:** 2011-10-13
- **Case number:** Civil Appeal No. 6786 of 2003
- **Bench:** R. V. Raveendran, H.L. Gokhale
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dr-t-varghese-george-v-kora-k-george-ors-27386
- **Pages:** 36

## Headnote

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 mismanagement 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 tw

## Text

_Characters 0–39,842 of 68,530. This is a partial read: ask again with offset=39842 for what follows._

A
B
[2011] 12 S.C.R. 1070
DR. T. VARGHESE GEORGE
v.
KORA K. GEORGE & ORS.
(Civil Appeal No. 6786 of 2003)
OCTOBER 13, 2011
[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 mismanagement 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 exofficio 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] (1103E-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.
All Saints' High School, Hyderabad and others Vs.
Government o(Andhra Pradesh 1980 (2) SCR 924 = 1980
(2) sec 478 - held in applicable.
F
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-DF]
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
F
2006 (9 ) Suppl. SCR 644 relied on
para 20
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.
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
B
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
wise2. 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:-
c
D
E
F
"2. The said Trust shall have the following objects
name/ya.
to run the said St. Mary's School,
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
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
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
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:-
B
" 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
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 mismanagement 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
F
(iii)
Shri Kora K. George, respondent No. 1 herein, who
is husband of the sister of Late T. Thomas.
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:-
H
"6. Whether the suit falls outside the purview of
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
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
B
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:-
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
G
this declaration of trust is made by T. Thomas, herein after
called the declarant which expression shall whenever it is
H
A
B
c
D
E
F
G
H
1084
SUPREME COURT REPORTS
[2011] 12 S.C.R.
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) to run other educational institutions, and institution
like research institution;
(c) to accept donation in any manner from any person
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
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
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:-
"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
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
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.
Shri Thakur Radha Bal/abhji reported in [AIR 1967 SC 1044],
had to be satisfied for invoking Section 92 of CPC viz. that (i)
A
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:-
"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
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
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."
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,
-D
E
F
G
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
G
H
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:-
"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
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
F
the Madras High Court went into the issue of framing of the
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:-
G
H
"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
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,
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."
8
15. The appellant thereafter moved a Contempt Petition
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.