Dismissed

Shri. Pradip Jaiwant Kamat Mhamai v. Dempo Charities Trust through Its Trustees and Anr.

Bombay HC4 Aug 2014FA/135/2007

Case brief

AI extract

What is this about?

Suit by co-owners of the Kamat Mamai family for eviction of a society and a trust from leased land running a college. The trial court dismissed the suit; the plaintiffs appealed. The High Court held the lease had not expired, that the vesting of the dissolved society's assets in the trust was neither subletting, transfer nor assignment, and dismissed both appeals.

What the court decided

AI extract

Shri. Pradip Jaiwant Kamat Mhamai Vs Dempo Charities… — Landlord and Tenant | Bombay HC (2014)

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F.A. No.135&146/2007

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IN THE HIGH COURT OF BOMBAY AT GOA

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FIRST APPEALS NO. 135 and 146 of 2007

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FIRST APPEAL NO. 135 of 2007

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Shri Pradip Jaiwant Kamat Mhamai, son of Jaiwant Kamat Mhamai, married, 60 years of age, retired Government Officer, residing at Mhamai Kamat House, near old Secretariat, Panaji, Goa. … Appellant.

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Versus

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1. Dempo Charities Trust,

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Dempo House,

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Campal, Panaji, Goa,

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through its Trustees:

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Shri Soiru V. Dempo, son of late Vaikunt V. Dempo, married, of full age, resident of St. Cruz, Ilhas, Goa and office at Dempo House, Campal, Panaji, Goa.

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b) Shri Srinivas V. Dempo, son of late Vasudev V. Dempo, married, of full age, Industrialist, resident of Altinho, Panaji, Goa and having his office at Dempo House, Campal, Panaji, Goa.

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1. The Goa Education Society,

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a Society registered under the Societies

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Registration Act, 1860, having its

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Registered office at Dempo College of

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Arts & Science, Miramar, Panaji, Goa,

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represented by its only surviving member of the Governing Council and (b) as legal Representative.

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F.A. No.135&146/2007

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a) Shri Gangadhar R. Sardessai, son of Ramaji Hirba Sardessai, retired headmaster, residing at Adarsh Colony, off Miramar Dona Paula Road, Post Caranzalem, Ilhas, Goa.

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b) Dempo Charities Trust, Dempo House, Campal, Panaji, Goa, through its Trustees

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i) Shri Soiru V. Dempo, son of late Vaikunt V. Dempo, married, of full age, resident of St. Cruz, Ilhas, Goa with office at Dempo House,

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Campal, Panaji, Goa.

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ii) Shri Srinivas V. Dempo, son of late Vasudev V. Dempo,

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married, of full age, Industrialist, resident of Altinho, Panaji, Goa … Respondents.

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Mr. R. G. Ramani, Advocate for the appellant.

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Mr. Sudesh Usgaonkar with Ms. Anagha Matondkar, Advocates for the respondents.

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AND

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FIRST APPEAL NO. 146 of 2007

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Prabhakar Kamat Mamai (now deceased) Through his legal representatives:

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1(a) Hema Sanjiv Sinai Priolkar,

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1(b) Sanjiv Sakharam Sinai Priolkar,

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1(c) Shrinivas Prabhakar Kamat Mamai,

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1(d) Miss Suyash Prabhakar Kamat Mamai.

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Hirabai Kamat Mamai, (deceased)

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Vithal Kamat Mamai, (As per order dated 25/11/2013 Appellant No. 3 is deleted.)

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all residing at Panaji, Goa.

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… Appellants.

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(Original defendants no. 3 to 11)

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Versus

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Dempo Charities Trust, Dempo House, Campal, Panaji, Goa through its trustees: (a) Soiru V. Dempo

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(b) Srinivas V. Dempo

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The Goa Education Society, a Society registered under the Societies Registration Act, with office at Dhempe College of Arts Miramar, Panaji, Goa, through its Governing Council:

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(a) Rajaram Hari Sinai Hede, s/o Hari Sinai Hede, retired Gov. employee of full age, residing at Panaji (deceased)

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(b) Prabhakar Shiva Angle, son of Shiva Angle, businessman residing at Panaji (deceased)

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(d) Madhav Upendra Sinai Talaulicar son of Upendra Sinai Talaulicar Industrialist, r/o Panaji (deceased)

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(e) Gangadhar R. Sardesai son of Ramaji Hirba Sardesai Headmaster, of full age, r/o Panaji

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(f) Jagdish M. Surlacar, son of Manguexa F. Surlacar, headmaster, of full age, r/o Panaji (deceased) ... Respondents no. 1 & 2 (Original defendants nos.1 & 2)

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Soiru Pundalik Kamat Mamai, (now deceased) 4. Dr. Shankar Hari Kamat Mamai, 5. Shri Vishnu Upendra Kamat Mamai, 6. Shri Pradip Jaivant Kamat Mamai, 7. Hiralal Nanu Kamat Mamai. (respondents 4 to 7 residing at Panaji, Goa.) 8. Ramachandra S. Kamat Mamai (now deceased) 9. Sumitra R. Kamat Mamai (now deceased) 10.Umakant S. Kamat Mamai 11.Satyabhama U. Kamat Mamai (now deceased) 12.Suman S. Kamat Mamai 13.Minaxi S. Kamat Mamai all residing at Panaji, Goa. … Respondents. (Original plaintiffs)

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Mr. M. B. D'Costa, Senior Advocate with Ms. Soniya Chodankar, Advocate for the appellants.

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Mr. Sudesh Usgaonkar with Ms. Anagha Matondkar, Advocates for the respondents no. 1 and 2.

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CORAM :- RANJIT MORE &

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U. V. BAKRE, JJ. Reserved on : 25th June, 2014 Pronounced on: 4 th August, 2014

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JUDGMENT : (Per U. V. Bakre, J.)

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Heard learned Counsel for the parties in both the appeals.

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2. This common judgment shall dispose of both the aforesaid appeals since they arise out of the same judgment, and decree dated 20/12/2006 passed by the learned Civil Judge, Senior Division, Panaji ('Trial Court') in Special Civil Suit No. 20/90/B.

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3. The appellant in F. A. No. 135/2007 was plaintiff no. 4 in the said Special Civil Suit and the respondents therein were the original defendants no. 1 and 2. The appellants of F. A. No. 146/2007 are the legal representatives of defendant no. 3 in the said Special Civil Suit. The respondents no. 3 to 7 were the plaintiffs in that Special Civil Suit; the respondents no. 1 and 2 were the original defendants no. 1 and 2, whereas the respondents no. 8 to 13 were the defendants no. 6 to 11 in the said suit. Parties shall, hereinafter, be referred to as per their status in the said Special Civil Suit.

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4 . The plaintiffs had filed the said suit in a representative capacity for eviction of the defendants no. 1 and 2 from the suit property, recovery of possession and recovery of arrears of rent

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and mesne profits. The defendants no 1 and 2; defendant no. 4; defendant no. 5 and defendants no 6 to 11 filed separate written statements. The plaintiffs and defendants 3 to 13 are the members of Kamat Mamai family. The defendants no. 3 to 11 had initially joined as co-plaintiffs and thereafter got transposed as defendants. They joined hands with the plaintiffs insofar as the prayers of eviction of the defendants no. 1 and 2 from the suit property and recovery of arrears of rent, are concerned. The defendants no. 3 to 11 had, however, filed counter claims for direction to the plaintiffs to pay to them their stated share of rent, in the undivided share.

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5. Case of the plaintiffs, in short, was as follows :

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There existed a Joint Hindu Undivided Family known as “Casa Social Camotim Mamai” which owned several immovable properties, including the one known as “Baili Vell or Pirduc”, bearing Land Registration No. 2655 of Book B-7 new, situated at Gaspar Dias of Tiswadi taluka. On 31/12/1964, the said undivided Hindu Family and others executed an agreement of lease with the defendant no. 2 with respect to two plots of the said property for a period of 99 years, on annual rent of ` 15,000/-. The said two plots are admeasuring 11873 square

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metres and 4938 square metres respectively. The said two plots together are the suit property. The said agreement of lease was amended/rectified by an instrument dated 11/07/1966. The annual rent was payable, in the monthly instalment of ` 1250/-, by depositing the same in any bank in Panaji as instructed by the lessors and in case of default of payment in time, the lessee was liable to pay interest at the rate of 8% per annum. This lease was to take effect as from 01/01/1965 for 99 years, renewable by mutual consent. The lessee had the right to erect buildings of Dhempe College of Arts & Science as well as other buildings connected with educational activities like hostels, quarters for staff, laboratories, lecture halls, offices, auditorium, gymkhana, playgrounds. In case of termination of the said lease on account of violation of its clauses by defendant no. 2, the defendant no. 2 had no right to claim compensation for the improvements made by it. It was also expressly agreed under the said lease that the defendant no. 2 shall not sub-let the suit property for any purpose other than to any specialized educational activities or organization of the defendant no. 2. By a decision given in proceedings No. 6/61 of the First Office of Comarca of Ilhas, confirmed by the “Tribunal de Relacao” on 19/02/1963, the said Sociedade namely “Casa Social Camotim Mamai” became extinct and as such, the properties belonging to the said Sociedade

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became the properties of all the members of Kamat Mamai family. The co-owners of the suit property are numerous. The plaintiffs have filed the suit for themselves as also on behalf of the other co-owners. In the month of September, 2007, Shri Zoivanta V. C. Mamai was head of the management committee which was formed for administration and management of the properties of the said Sociedade. Said Zoivanta received a letter dated 05/09/1987 from defendant no. 1 accompanied with the cheque of ` 15,000/- in favour of “Casa Social Camotim Mamai”, alleging the same to be towards the lease period ending on 31/03/1987. Said Zoivanta Mamai, by his letter dated 31/09/1987, informed defendant no. 1 that he will be placing the said letter before the Committee for decision and that he has not accepted the transfer of tenancy in favour of defendant no. 1. He died on 09/10/1987. The plaintiff no. 1 was then appointed as the head of family upon the death of Zoivanta. Two days prior to the death of Zoivanta, he had received another letter from defendant no. 1 stating that there was no transfer of tenancy and alleging that there was dissolution of defendant no. 2 and constitution of defendant no. 1. No documents, as alleged in the said letter dated 07/10/1987, were given to late Zoivanta Mamai. The plaintiff no. 1 could scrutinise the papers only after a month from the date of death of said Zoivanta and could place the said

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two letters dated 05/09/1987 and 07/10/1987 of defendant no. 1 before the Committee along with the said cheque of 15,000/-. By letter dated 22/01/1988, the plaintiff no. 1 communicated the decision of the Committee to the defendant no. 1 stating that illegal transfer made by defendant no. 2 in favour of defendant no. 1 was not acceptable to the plaintiffs' committee. However, defendant no. 1, once again, sent another cheque of 15,000/drawn in the name of “Casa Social Camotim Mamai” with letter dated 24/03/1988 alleging it to be the rent for the year ending 31/03/1988. Again, the plaintiff no. 1 informed the same earlier decision of the Committee to the defendant no. 1, by letter dated 25/04/1988. Still defendant no. 1 sent another cheque of ` 15,000/- alleging to be the rent towards the year ending 31/03/1989. The same was also replied by the plaintiff no. 1 by letter dated 19/04/1989 confirming the earlier decision of the Committee. Defendant no. 2 has thus illegally sub-let or transferred the leasehold rights in the suit property in favour of defendant no. 1 in violation of the contract and also in violation of the law. The plaintiffs' committee and other members decided to take legal action against the defendant for such acts and hence, by letter dated 10/05/1989, the plaintiff no. 1 called upon the defendant no. 1 to furnish relevant documents. However, the defendant no. 1 refused to give the documents. The plaintiffs

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came to know that in the General Body Meeting of the defendant no. 2 held on 30/01/1987, the defendant no. 2 was declared to be dissolved. It was further resolved in the said General Body Meeting to hand over all the assets of defendant no. 2 together with its liability to the defendant no. 1, which was a Trust formed under the Indian Trust Act, 1882 under the Deed of Trust dated 31/08/1965. The Indian Trust Act, 1882 is not applicable to the State of Goa and as such, defendant no. 1 was not a legal entity. As per Section 13 of the Societies Registration Act, 1860, a society could be dissolved by any members not less than 3/5^th of the total members by a resolution. The plaintiffs have apprehension that the dissolution of defendant no. 2 made by resolution dated 30/01/1987 was not legal as required members of Trust might not have agreed for dissolution of defendant no. 2. Hence, the suit.

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6. The defendant no. 1, in its written statement, alleged as follows :

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The Dempo Charities Trust was constituted by an instrument dated 31/08/1965. The initial lease agreement and facts as stated in first four paragraphs of the plaint are admitted. The members of Sociedade had not indicated the place where

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the deposit of rent was to be made. After the death of Subraya Mamai, there was a property dispute between the members of the plaintiffs and the defendant no. 1 received instructions from some members not to effect payment to others, who were demanding it. Thereafter, the payments were received on behalf of the plaintiffs and finally, by letter dated 01/10/1986, Zoivanta Kamat Mamai expressed that after the payment of last instalment made, the amount shall be paid every year. The last instalment was paid on 06/10/1986 and the amount was settled as on 31/03/1986. The fact that Zoivanta Kamat Mamai wanted to put up the matter before the Committee itself, clearly showed that he had with him the entire material on the subject. There was neither subletting nor there was any transfer. The dissolution of defendant no. 2 had been done by the members representing more than 3/5^th and the said dissolution by resolution dated 30/01/1987 was in accordance with Section 13 of Societies Regulation Act as well as under Bye Laws No. 95 and 96 of the Constitution of defendant no. 2. The Indian Trust Act, 1882 has been extended to the territory of Goa, Daman and Diu by notification dated 31/03/1963 published in the gazette no. 13, series I with effect from 01/04/1964 and that the Trust had been constituted in accordance with the same. It is true that the plaintiffs had not encashed the cheques, but the said cheques

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had not been returned back. If the relief was based on the breach of contract of lease, the jurisdiction vested with the Rent Controller and the eviction on the ground of non-payment of rent had to be proceeded by a notice and the Civil Court had no jurisdiction.

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7. The Ex-members of the defendant no. 2 filed written statement and their defence was similar to that of the defendant no. 1.

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8. The defendants no 3 to 11 in their written statements, admitted the case of the plaintiffs regarding the violation of the lease agreement by the defendant no. 2 and default in payment of rent. They filed counterclaims to direct the plaintiffs to pay to them their share in rents, as claimed.

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9. Following issues were framed by the learned Trial Court:

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“1. Whether the plaintiffs prove that defendant no. 2 has illegally sublet or transferred the lease hold right of the suit property to the defendant no. 1, in violation of the contract ?

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Whether the plaintiffs prove that the

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defendant no. 1 did not furnish the documents of deed of trust and other documents to the plaintiffs and deliberately concealed the same from the plaintiffs ?

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Whether the plaintiffs prove that they are entitled to recover from the defendant no. 1 an amount of 56,250/-, towards rent or in the alternative 1,98,000/-, towards mesne profits, up to June 1990 ?

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Whether the defendant no. 1 proves that the dissolution of defendant no. 2, made by dissolution dated 30.1.87, is legal ?

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4(A) Whether the plaintiffs prove that the suit which is filed without determining lease by notice is maintainable ?

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What relief ? What order ?

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Additional Issues

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Whether the defendants no. 3 and 4 are entitled to 1/12^th , the defendant no. 5 is entitled to 1/24^th and defendants no. 6 to 11 are entitled to 1/6^th share in the rent of the suit property paid by defendant no. 2 to the plaintiffs from the year 1976 upto the year 1986-87 ?

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Whether the defendants no. 3 and 4 are entitled to 1/12^th , the defendant no. 5 is entitled to 1/24^th and the defendants no. 6 to 11 are entitled to 1/6^th share in the rent of the suit property payable by the defendants no. 1 and 2 from the year 1986 to 1990 ?”

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10. The plaintiffs examined plaintiff no. 4 Shri Pradeep Jaywant Kamat Mamai as PW1. Defendants no. 1 and 2 examined Shri Shriniwas Dempo as DW1, Kishore Angle as DW2, Chittaranjan Kenkare as DW3. Defendants no. 3(a) to 3(d), 4 and 5 examined one Shri Subodh Mamai as DW4. Defendants no. 6 to 11 did not examine any witness.

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11. Upon consideration of the entire evidence on record, the learned Trial Court found that clause no. 15 of the agreement made it clear that sublease, if any, could only be for educational activities of the lessee or other organization of the lessee and in the present case, admittedly, the educational activities of defendant no. 2 were continued by defendant no. 1 and there was no change of user of the property or the purpose for which the suit property was let out. It held that the alleged subletting/transfer of the leasehold rights in the suit property by

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defendant no. 2 in favour of defendant no. 1 was not in violation of the lease agreement. The Trial Court further held that there was no sublease or transfer of the suit property by defendant no. 2 in favour of defendant no. 1 but there was vesting of assets and liabilities of defendant no. 2 - Society in defendant no. 1- Trust. The Trial Court observed that defendant no. 1 - Trust can be treated as an organization of the dissolved defendant no. 2- Society, which was persuading the same purpose and object of the Society with respect to the suit property i.e. conducting educational activities. It held that the subject matter of the lease being open plots of land, the provisions of Rent Control Act were not applicable to the suit. Issues no. 1, 2 and 3 have been answered in the negative; issues no. 4 and 5 have been answered in the affirmative and issues no. 6 and 7 have been answered partly in the affirmative. The suit as well as the counterclaims are dismissed.

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12. Mr. D'Costa, learned Senior Counsel appearing on behalf of the plaintiffs submitted that the Transfer of Property Act was extended to Goa on 25/04/1966 i.e. after the execution of the lease, which is the subject matter of this case. He submitted that the lease in the present case was, therefore, governed by the Portuguese Decree no. 43.525 and in terms of the provisions of

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this Decree, there could not be a lease for more than 30 years. He submitted that the said lease had expired during the pendency of the suit, by virtue of Article 21 of the said Decree No. 43.525 and if the lease had come to an end, the sub-lease, if at all it was there, would automatically come to an end. He pointed out that the plaintiffs were not parties to any of the resolutions relied upon by defendants no. 1 and 2. He submitted that the instrument of handing over was without consent of the plaintiffs as well as without any consideration. Learned Counsel submitted that under Article 63 of Schedule I of the Stamp Act, for transfer by way of assignment and not by way of lease, the same duty is payable as a conveyance for consideration equal to the amount of consideration of transfer. He pointed out that no stamp duty as requires has been paid. He also submitted that the Trust in the present case is a Public Trust, whereas the Indian Trust Act, which is extended to Goa, is not applicable to Public Trusts. He submitted that Section 13 of the Societies Registration Act, 1860 requires presence of 3/5^th of the members for dissolution. He contended that defendants no. 1 and 2 had not proved the presence of required number of members to form the said quorum of 3/5^th . He pointed out that the register of members itself was not produced by the defendants and this according to him was fatal to the case of the defendants. He

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contended that since there was no transfer, the defendant no. 1 was trespasser in the suit property. Learned Senior Counsel alleged that a sub-lease implies subsistence of the lease. He submitted that for the purpose of subletting, there has to be a lessor. Where lessor had extinguished, there could not be a sublease. He further argued out that even otherwise, if there was sublease, there had to be consideration in the form of rent, which was not there. He, thus, contended that in the present case at the most, there was assignment of the lease or transfer of lease hold rights which was not permissible under the provisions of the said decree No. 43.525. Learned Counsel urged that there is no law of succession which provides for such a succession. He further submitted that the defendant no. 1 is not in any way connected with the defendant no. 2. He further urged that the defendant no. 1 does not carry out any educational activity of the lessee nor it is any other organization of the lessee. He, therefore, urged that the findings of the Trial Court are vague, inconsistent and perverse and hence the appeal deserves to be allowed. Mr. Ramani, learned Counsel adopted the submissions made by the learned Senior Counsel.

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13. Mr. Usgaonkar, learned Counsel appearing on behalf of the defendants no.1 and 2 submitted that paragraph 17 of the plaint reveals that the plaintiffs had only an apprehension that the

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dissolution of defendant no. 2 was not legal. He, therefore, submitted that with such pleading, issue no. 4 ought not to have been framed. He further submitted that the provisions of Sections 13 and 14 of the Societies Registration Act and clauses 95 and 96 of the Rules and Regulations of defendant no. 2 - Society, reveal that the property of the dissolved society could be given to some other institution having objects similar to those of the society. According to the learned Counsel, in accordance with the above provisions and regulations, there was vesting of the property in the defendant no. 1 as per the decision of defendant no. 2. He pointed out from the deed of Trust that one of the purposes of the Trust was in consonance with the aims and objects of respondent no. 2-society. He further submitted that the evidence on record abundantly proves that resolution of dissolution of defendant no. 2 was passed by more than 3/5^th of the members. He, therefore, urged that the Trial Court rightly held that issue no. 4 was proved by the defendants. He pointed out from the instrument of lease that the said land was earlier proposed to be acquired by the Government for construction of Dhempe College of Arts and Science and even notification to that effect was issued. He submitted that the predecessor of the plaintiffs had agreed to create lease of the property in favour of defendant no.2 - society in the backdrop of the said acquisition

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proceedings, as they had reservations about the amount of compensation. He submitted that the recitals of the instrument of lease make it clear that lease would be for 99 years, in the first instance, to be extended with mutual consent of both the parties. He further pointed out from the said lease deed that the expression “Goa Education Society” includes its “successors”. He further submitted that vesting of assets of the lessee in the defendant no. 1 was neither subletting nor transfer. He urged that the said act was merely stepping of defendant no. 1 in the shoes of defendant no. 2 in view of dissolution of defendant no. 2 and taking over the obligations and rights of defendant no. 1. He, therefore, submitted that the deed of handing over, which is executed in the implementation of the resolution of vesting, need not provide for any consideration. He further submitted that the defendant cannot also be termed as an assignee.

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14. Learned Counsel, appearing on behalf of the defendants no. 1 and 2, submitted that the provisions of decree no. 43.525 are not applicable to the present case. He submitted that for the first time in this appeal, reference has been made to Articles 2 and 21 of the said decree regarding the period of lease and that in the written submissions, filed before the Lower Court, reference was made to the said decree only in the context of

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subletting being in violation of contract and rescission of the contract attracting the provisions of Articles 46 and 91 of the said decree. He further submitted that even otherwise Articles 2 and 21 of the said decree are also not applicable to the present case. He submitted that the decisions reported in 1989(2) Goa Law Times 122 and in 1989 (2) Goa Law Times (118) are not applicable. He further submitted that the documents produced by DW2 were admitted in evidence, after considering the objections of the plaintiffs and hence, there was no case of suppression for drawing any adverse inference. Learned Counsel, therefore, urged that the Trial Court considered the pleading and evidence on record in the right perspective and the impugned judgment cannot be termed as perverse or arbitrary or capricious. He, therefore, submitted that the appeal be dismissed.

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15. We have gone through the entire material on record. We have considered the submissions advanced by the learned Counsel for the parties.

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16. The first question that arises for determination is whether on account of the provisions of the Portuguese Decree No. 43.525, more particularly Article 21 of the said decree, the lease

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in the present case had come to an end after the expiry of 30 years from 01/01/1965.

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17. In the case of ”G. N. Agarwal V/s Alina D'Costa e Pinto & Ors.” ([1989 (2) Goa Law Times (122)], the plaintiffs had leased a plot of land to the defendant for three years and under that lease the defendant could construct structures of temporary nature only, therein. The defendant, however, built a permanent structure as repair station for motor vehicles. It was observed by the learned Single Judge of this Court that it is not in dispute that the Rent Act applies to buildings only and not to lands and therefore the inescapable conclusion is that despite Section 59(1) of the Goa, Daman & Diu Buliding (Lease, Rent and Eviction) Control Act, 1968 (Rent Act), what holds the field is not the Rent Act which applies only to buildings but the Portuguese Decree No. 43.525 which applies not to buildings but to lands “not meant for production”. The matter was carried forward in Letters Patent Appeal. In the said case of “G. N Agrawal V/s Alina D'Costa e Pinto & Ors” [1989 (2) Goa Law Times (118)], the learned Division Bench of this Court held that the repeal under Section 59(1) of the Rent Act does not cover premises which are not “buildings” as per Section 2(e) of the Rent Act and in regard to those premises the Decree No. 43.525 shall continue

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to apply even after 01/10/1969. Article 1 of the Decree No. 43525, inter alia, provides that this Decree governs the tenancy in respect of buildings without prejudice to the provisions of the Portuguese Civil Code, relating to the provisions of tenancy either general or special, which do not contradict it. Article 2 lays down that leases of lands, which are not meant for agricultural purposes or in which commercial or industrial establishments are functioning with the consent of the lessor, provided that the respective agreements comply with the external form which for those reasons is required by Article 10, are governed by the provisions of this law. Article 21 says that it shall not be permissible to lease for more than 30 years and when it is stipulated for a superior period or it is agreed to be perpetual, it shall be reduced to the aforesaid period. Article 1600 of the Portuguese Civil Code, however, provides that the letting out may be for any period agreed upon between the parties, except what is provided in the following two articles.

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18. In the lease deed dated 31/12/1964, the period of lease is stipulated to be 99 years to be extended with mutual consent of both the parties. In paragraph 3 of the plaint the plaintiffs themselves had averred that the lease was for 99 years. Again in paragraph 5 of the plaint, the plaintiffs had averred that the

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lease was to take effect from the first day of January 1965 and was to last for 99 years renewable by mutual consent. This was in consonance with the said lease agreement dated 31/12/1964. This fact was specifically admitted by all the defendants, including the members of Kamat Mhamai family. The entire Kamat Mhamai family admitted that the lease was for 99 years to be extended by consent of both the parties. The relief of eviction of the defendants no. 1 and 2 could not have been sought on the ground of expiry of lease, after 30 years because when the suit was filed on 29/01/1990, the said lease period had not expired. The said relief of eviction was sought on the ground that the instrument dated 22/05/1987, where under the suit property was handed over to the defendant no. 1 by the defendant no. 2, was invalid, illegal and in violation of law as also the contract. The period of 30 years had come to an end in January 1995. The evidence in the suit had not even begun at that time. The issues were framed by the Trial Court on 23/06/1997. One additional issue was framed on 02/03/2000 and two more additional issues were framed on 14/12/2006. Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other. No amendment to the plaint was sought for alleging that the lease was for a period of 30 years only and it had expired by efflux of time. Entire pleadings of the plaintiffs as

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well of the defendants stood on different footing and were not based on the provisions of Portuguese Decree No. 43.525. There was no issue framed on the period of lease as to whether it was only for 30 years. Since it was not at all affirmed by the plaintiffs in the plaint that the lease was for 30 years only, the question of denial by the defendants no. 1 and 2 and consequently framing of issue on that plea did not arise and no evidence also was led by the parties. The said question of period of lease cannot be said to be a pure question of law. It had to be raised by way of pleadings. For the first time in the written submissions filed before the Trial Court, the plaintiffs made reference to the Portuguese Decree No. 43.525. But that was also not in the context of the said admitted period of lease of 99 years but in the context of subletting being in violation of the agreement and rescission of the contract attracting the provisions of articles 46 and 91 of the said Decree. The Counsel for the parties had not made submissions on the provisions of Articles 2 and 21 of Decree No. 43.525. Therefore there is no finding of the Trial Court on this aspect. Only after not succeeding in the suit, before the Trial Court, for the first time, in the memo of appeal before this Court, the plaintiffs have taken a ground that in view of the provision of Decree No. 43.525, the lease ought to have been construed as for the period of 30 years and that the Trial Court

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ought to have taken into consideration the subsequent event of the expiry of the lease dated 31/12/1964 on 31/12/1994, during the pendency of the suit. In our view, this is not permissible. Therefore, we are not inclined to go into the issue whether in terms of the provisions of the decree No. 43.525, the lease had expired. We hold that in view of the pleadings of the parties and the evidence produced by them, as per the pleadings, the lease had not expired after the expiry of 30 years from the date of its execution.

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19. The next question which arises is whether there was subletting or transfer of lease hold rights or assignment made by the defendant no. 2, of the suit property, in favour of the defendant no. 1.

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20. As per the lease agreement dated 31/12/1987, the defendant no. 2-society, inter alia, includes its successors. Under the said agreement, subletting was not allowed for purposes other than education. The lease agreement, vide clause (ix) gave right to the defendant no. 2 to erect buildings on the leased land. It further provided, vide its clause (xii), that in case of termination of the agreement on account of violation of its clauses, the lessee shall have no right for compensation for the

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improvements made. Clause (xiv) of the said lease agreement provided that the lessee shall not sub-let for any purpose other than to any specialised activities or organisations of the lessee. However, it adds that for its educational purposes or to any other organisation of the lessee, it may sublet without obtaining further authorisation from the lessor.

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21. The case of the defendants no. 1 and 2, as pleaded in their written statements, was that there was dissolution of defendant no. 2 and handing over of the suit property to defendant no. 1. The defendants no. 1 and 2 had both specifically pleaded in paragraph 13 of their written statements that there was neither sub letting nor transfer. It was their case that vesting of the suit property by the Governing Council of the defendant no. 2 in favour of the defendant no. 1 had taken place in terms of the constitution (Rules and regulations) of the defendant no. 2- society. The instrument dated 22/05/1987, by which the suit property came in the hands of the defendant no. 1, is not titled as an instrument of sub-lease or an assignment. It is titled as an instrument of handing over. The contents of the said instrument nowhere reveals any ingredient of sub letting. As rightly submitted by the learned Counsel for the plaintiffs, for creating a sub lease, there has to be in existence a lessee who should

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continue to remain as lessee. In the present case the lessee was the defendant no. 2-society which itself was dissolved. The extinction of the defendant no. 2 took place on 22/05/1987. Besides the above, there was no consideration by way of rent, payable by the defendant no. 1 to the defendant no. 2. In any case the existence of defendant no. 2 had come to an end by means of the same instrument dated 22/05/21987 and hence the question of payment of rent by defendant no. 2 to defendant no. 1 did not arise. Hence, there was no sub letting or transfer of lease hold rights at all. It is nobody's case that there was assignment of the lease hold rights. The evidence on record also does not in any way leads to any conclusion about assignment of the suit property.

¶161

22. The instrument of handing over, which is dated 22/5/1987, in its recitals, says that by resolution dated 30/01/1987, of the general body of the defendant no. 2, it was decided as per by-law No. 95 of the Memorandum of Association of the defendant no. 2, that the defendant no. 2 be dissolved and as a consequence of the dissolution, all the moveable and immoveable assets shall be handed over to the defendant no. 1. In its operative part, in clause no. (1), the said instrument says that all the assets of the defendant no. 2 including Dhempe College of Arts & Science and

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S. S. Dempo College of Commerce & Economics, with their Higher Secondary Units and Hostels, have been handed over by the defendant no. 2 to the defendant no. 1. The clause no. (2) says that all the liabilities of the defendant no. 2 have been passed to the defendant no. 1 and the defendant no. 1 has accepted all the liabilities. As per the clause no. (5), consequent upon the handing over and vesting, the defendant no. 1 shall be successor in interest of the defendant no. 2 so that the defendant no. 1 gets its name or any other name replaced before the concerned institutions or other authorities. The assets, which include the suit property, have been described in the schedule.

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23. Clause 3(n) of the Memorandum of Association of the defendant no. 2-society reveals one of the aims and objects of the Society to be to sell, let, lease, manage, transfer, exchange, mortgage, gift, demise, dispose of or otherwise deal with any property whatsoever belonging to the Society. Section 13 of the Societies Registration Act, 1860, inter alia, provides that not less than 3/5^th of the members of the society may determine that it shall be dissolved and thereupon it shall be dissolved forthwith or at the time then agreed upon. The first proviso to Section 13 provides that no society shall be dissolved unless three-fifths of the members shall have expressed a wish for such dissolution by

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their votes delivered in person or by proxy, at a general meeting conveyed for the purpose. Section 14, inter alia, lays down that if upon the dissolution of any society registered under this act there shall remain after the satisfaction of all its debts and liabilities any property whatsoever, the same shall not be paid to or distributed among the members of the said society or any of them, but shall be given to some other society, to be determined by the votes of not less than three-fifths of the members present personally or by proxy at the time of the dissolution, or, in default thereof, by such court as aforesaid. As per the amendment vide Goa Act 6 of 1979, it shall be lawful for the members of any society dissolved under section 13 to determine by a majority of votes of such society that any property whatsoever remaining after the satisfaction of all its debts and liabilities shall be given to the Government to be utilized for any of the purposes referred to in section 1A. Rules 61 to 69 of the Rules and Regulations of the defendant no. 2-society lay down the procedure for general meetings of the society and Rules 95 and 96 of the same provide for dissolution of the said Society. Relevant Rules are quoted hereunder:-

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(A) Rule 95 says as under:

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“ Any number not less than three-fifths of the members of the society may determine that it shall

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be dissolved, and thereupon it shall be dissolved forthwith or at the time then agreed upon and all necessary steps shall be taken for the disposal and settlement of claims, debts and liabilities of the society.”

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(B) Rule 96 provides as follows:

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“ If upon the dissolution of the Society in terms of clause 95 hereinabove there remains, after the satisfaction of all its debts and liabilities, any property whatsoever, the same shall not be paid to or distributed among the members of the society or any of them but shall be given to some other institution or institutions having objects similar to the objects of the Society, and which shall prohibit the distribution of its or their income and property among its or their members, such institution or institutions to be determined by not less than three-fifths of the members of the Society personally present at the time of dissolution, or in default thereof by the respective Comarca Court or its substitute or the Principal Court of Original Civil Jurisdiction of the District in which the office of the society is situated.”

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24. It is true that the resolution dated 31/01/1987 does not mention the total number of members of the defendant no. 2, present for the said meeting. The defendants no. 1 and 2 have not produced on record the register of members though in paragraph 17 of the written statement of the defendant no. 1, it was averred that the defendant has no objection to produce before the Court the books and the registers. It is pertinent to note that the plaintiffs themselves were not sure that the dissolution of defendant no. 2 was not made by resolution passed by 3/5^th members of the society. They pleaded in paragraph 17 of the plaint that they have apprehension that the dissolution of defendant made by resolution dated 30/01/1987 was not legal as the required number of members might not have agreed for the dissolution of the defendant no. 2. Thus, there was no concrete pleading that there was no 3/5^th majority. DW1 in his evidence stated that he cannot produce the said register as it is not traceable. However, it is pertinent to note that DW3, Shri Chittaranjan Kenkre, produced on record the notarised copies of the lists of members of the defendant no. 2 for the years 1971, 1977 and 1979. He produced notarised copies of several lists of members for several years from 1983 to 1987, to whom notices of the extraordinary General Meetings or Annual General

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Meetings of the society or about cancellation of the meetings, were sent. The production of the lists was objected to by the learned Advocate for the plaintiffs. The defendant then filed an application (Exhibit 95) for leave to produce the said lists. By judicial order passed on Exhibit 95, the production of the said lists was allowed and they were subject to testing in crossexamination. There is ample cross-examination of DW3 done by the learned Advocate for the plaintiffs, on the said lists. In our view, the said lists are not fabricated but are genuine. The nonproduction of register of members, which according to DW1 was not traceable, is not fatal. The evidence of DW3 and the said documents read with the resolution dated 30/01/1987 produced by him duly prove that out of the 70 members in all, 18 members had expired during the period from 1979 to 1986 and one member had resigned. Thus, there were altogether 51 members of the defendant no. 2-society. On 30/01/1987, the meeting was held after sending notices to said 51 members by certificate of posting. Forty one members participated in the meeting out of which 19 participated in person and 22 members participated through proxies, whose names are given by DW3 and he has also produced the proxy forms. As is seen from the records, out of 45 members, two members namely Vasantrao Dempo and Vassudev Dempo did not participate on account of their personal interest

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in the defendant no. 1. The resolution of dissolution of the defendant no. 2 was voted in favour by 39 members. In other words, more than 3/5^th members had passed the said resolution. The proceedings of dissolution of defendant no. 2 were therefore perfectly legal, in accordance with Section 13 of the Societies Registration Act and the Rules and Regulations(Bye-laws) of the Society.

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25. The dissolution of defendant no. 2 was done with the purpose of handing over the assets of the society to Dempo Charities Trust (defendant no. 1). In this Extraordinary General Meeting of the defendant no. 2 held on 30/01/1987, it was resolved to hand over and vest all the assets of the defendant no. 1 together with its liabilities as on 31/01/1987 including Dhempe College of Arts & Science together with Higher secondary Unit and Hostels and S. S. Dempo College of Commerce & Economics together with its Higher secondary Unit to the Trustees of Dempo Charities Trust. The governing council of the defendant no. 2 was authorised and empowered to do all such acts and things and to execute and deliver all deeds, documents and papers to effectuate the said resolution and to hand over and vest in the said Dempo Charities Trust all the said assets as above and to exonerate the defendant no. 2 and its

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members from any liability of the society. It was lastly resolved that the dissolution will be complete and effective only after handing over and vesting is effectively done. The use of the words “handing over and vesting” several times in the said resolution, unambiguously, reveals the intention of the defendant no. 1 and 2 that this was not sub-letting nor was it transfer of lease hold rights and also not assignment, but is was simple vesting of the assets in the defendant no. 2.

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26. By resolution taken in the 107^th meeting of the defendant no. 2, held on 22/05/1987, the governing council of the defendant no. 2, in order to implement the decision of the General Body taken on 30/01/1987, resolved to execute a separate instrument between the governing council of the defendant no. 2 and the defendant no. 1 to take over all the said assets of the defendant no. 2 by defendant no. 1. Accordingly on 22/05/1987, the said instrument of handing over was executed before the SubRegistrar of Ilhas.

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27. Indisputably, the defendant no. 1-Trust was made under the provisions of Indian Trust Act. By notification published in the Official Gazette No. 13 (Supplement 3) Series I dated 31/03/1964, the Indian Trust Act, 1882 has been extended to the

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territory of Goa, Daman and Diu, with effect from 01/04/1964. The indenture of Trust shows that the settlers were desirous of making provision to provide help in the promotion, inter alia, of art, charity, commerce, education, science and other educational objects and purposes. It is clear from clauses 1(d), (e), (f), (g) and (h) of the deed of trust that the defendant no. 1 was formed to promote education. Accordingly, clause 1(d) of the indenture gives its purpose to establish, maintain, conduct and foster in any place in Goa and elsewhere the growth of educational schools, colleges, research laboratories, business administration schools, residential courses and other allied institutions for the spread, advancement and imparting of a sound religious, mathematical, cultural, classical and general education and knowledge of the highest order. The deed of lease provided that the lessee shall not sub-let for any purpose other than to any specialised activities or organisation of the lessee and for its educational purposes or to other organisation of the lessee, it may sublet without obtaining further authorisation from the lessor. It may be that the defendant no. 1 is not in any way connected to the defendant no. 2. The defendant no. 1 is an independent body. But since there is no subletting or transfer of leasehold rights or assignment but simple handing over and vesting, there is no violation of the lease agreement. The

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plaintiffs did not plead that the defendant no. 1 was not involved in specialized educational activities akin to those carried out by the defendant no. 2. The deed of trust speaks for itself. Thus, in terms of Sections 13 and 14 of the societies Registration Act read with Rules 95 and 96 of the Rules and Regulations of the defendant no. 2-society, it was permissible for the defendant no. 2 to dissolve itself and vest all the assets including the leased assets and the infrastructure thereon to the defendant no. 1, in accordance with the said Rules. On the dissolution of the defendant no. 2, its assets and liabilities have been vested in the defendant no. 1, in accordance with the resolution dated 30/01/1987. The defendant no. 1 has stepped in the shoes of the defendant no. 2 and whatever obligations and rights, the defendant no. 2 had with the plaintiffs are now the rights and obligations of the defendant no. 1, under the same lease deed dated 31/12/1964. Therefore, there is no question of any consideration for such handing over and vesting. Since the deed of handing over of assets and liabilities was not a sub-lease, or transfer or assignment, Article 63 of the Stamp Act will have no application. For similar reasons, there was no need of participation of the plaintiffs, in the said process of handing over of the suit property by defendant no. 2 to defendant no. 1.

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28. A minute perusal of the plaint reveals that the case of the plaintiffs was that the instrument dated 22/05/1987 whereunder the suit property has been handed over to the defendant no. 1 by the defendant no. 2, is an instrument of sub-lease or transfer of lease hold rights, which is invalid, illegal and in violation of the law as also of the contract and that the resolution of dissolution of the defendant no. 2 is not legal as the required number of members might not have agreed for the dissolution of defendant no. 2. Accordingly, the issues no. 1 and 4 were framed by the Trial Court. Once the said issues got answered in the negative, the suit failed. The agreement of lease dated 31/12/1964 reveals that by order dated 12/09/1963, of the Lt. Governor of Goa, Daman and Diu, the suit property was declared as requisitioned for construction of Dhempe College of Arts and Science and it was valued at Rupees two hundred and fifty thousand one hundred and sixty five. Since the Casa Social Camotim Mamai would not agree for the said price, it was agreed by an agreement signed on 23/01/1964, in the presence of the Development Commissioner for the Government of Goa, Daman and Diu, Shri Alban F. Couto that the said Casa Social Camotim Mamai will give the suit property to the defendant no. 2 on lease for 99 years in the first instance, to be extended with mutual consent of both the parties. The various buildings existing in the

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suit property which belonged to the defendant no. 2 still exist with the same names but have been now vested in the defendant no. 1.

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29. In view of the above, the impugned judgment and order is in accordance with the settled principles of law based on correct appreciation of the evidence on record. No interference with the same is called for.

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30. In the result, the appeals are dismissed. However, in the facts and circumstances of the case, no order as to costs.

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RANJIT MORE, J.

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U. V. BAKRE, J.

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SMA

Shri. Pradip Jaiwant Kamat Mhamai v. Dempo Charities Trust through Its Trustees and Anr.

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Shri. Pradip Jaiwant Kamat Mhamai v. Dempo Charities Trust through Its Trustees and Anr.

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