Partly allowed

St. Thomas Forane Church v. St. Francis Reading Association

Kerala HC11 Jul 2017RFA/358/2014

Case brief

AI extract

What is this about?

Ownership and management of three schools were disputed between a church and an association. The court affirmed the association's incorporeal ownership and educational agency, upheld its amended constitution and registration, and permitted its elected manager to function. Appeals were partly allowed, with land title and consequential reliefs remanded for fresh determination.

What did the court decide?

Declaration of continuity of the Association granted; title and consequential reliefs remanded; elected manager permitted to replace the interim official manager.

St. Thomas Forane Church Vs St. Francis Reading… — Education and Admissions | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE V.CHITAMBARESH & THE HONOURABLE MR. JUSTICE SATHISH NINAN

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TUESDAY, THE 11TH DAY OF JULY 2017/20TH ASHADHA, 1939

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RFA.NO. 358 OF 2014 (F) -----------------------AGAINST THE JUDGMENT IN O.S. NO.1300 OF 2010 OF I ADDITIONAL SUB COURT, THRISSUR

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APPELLANT(S)/IST DEFENDANT:

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ST. THOMAS FORANE CHURCH MATTOM DESOM THRISSUR DISTRICT REPRESENTED BY THE PRESENT VICAR FR. DAVIS PANAMKULAM.

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BY SENIOR ADVOCATE SHRI S.SREEKUMAR

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SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA

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APPELLANT SUBSTITUTED:

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ST.THOMAS FERONA CHURCH, MATTOM DESOM, THRISSUR DISTRICT, REPRESENTED BY THE PRESENT VICAR, FR.JOSE VALLOORAN.

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AS PER ORDER DATED 11.07.2017 IN I.A. NO.1019 OF 2017

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RESPONDENT(S)/PLAINTIFFS 1 TO 11/DEFENDANTS 2 TO 38:

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ST. FRANCIS READING ASSOCIATION P.O. MATTOM, THRISSUR, REP. BY ITS SECRETARY M.M. FRANCIS, MULAKKAL HOUSE, P.O. NAMBAZHIKKAD MATTOM, THALAPPILLY TALUK, ALOOR VILLAGE THRISSUR - 680 602.

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JOSEPH JACOB C. S/O. LATE C.M. JACOB, CHIRAMMEL HOUSE, S.V. COLONY KOZHIKODE DISTRICT.

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M.T. GEORGE S/O. LATE THOMAS MEMBER ST. FRANCIS READING ASSOCIATION, MATTOM THRISSUR, RESIDING AT MALIYAMMAVU HOUSE, MATTOM THRISSUR DISTRICT - 680 602 (DIED).

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R.F.A. NO.358 OF 2014

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E.K. THOMAS S/O. LATE KURIAKOSE, MEMBER ST. FRANCIS READING ASSOCIATION, MATTOM, THRISSUR RESIDING AT EDAKKALATHOORE HOUSE, MATTOM P.O. THRISSUR - 680 602. 5. K.M. JOSEPH S/O. MATHU, MEMBER, ST. FRANCIS READING ASSOCIATION MATTOM, THRISSUR, RESIDING AT KATTOOKKARAN HOUSE MATTOM P.O., THRISSUR -680 602.

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C.M. NICHOLAS, S/O. MATHU, MEMBER, ST. FRANCIS READING ASSOCIATION MATTOM, THRISSUR, RESIDING AT CHIRAMMEL HOUSE NAMBAZHIKAD, THRISSUR - 680 602. 7. M.O. LOUIS S/O.M. THOMAS OUSEPH, MEMBER ST. FRANCIS READING ASSOCIATION RESIDING AT MULAKKAL HOUSE, EDAKKALATHOOR P.O. THRISSUR DISTRICT - 680 552. 8. K.L. CHAKKORU, S/O. LONA, MEMBER, ST. FRANCIS READING ASSOCIATION RESIDING AT KAKKASSERY HOUSE, MATTOM THRISSUR - 680 602. 9. CHAKKUNNI K.J. ALIAS JOMON, S/O. JOSEPH, MEMBER ST. FRANCIS REAIDING ASSOCIATION RESIDING AT KAKKASSERY HOUSE, MISSION QUARTERS, MATTOM THRISSUR - 680 602 (DIED). 10. THOMAS T.M. THANIKKAL HOUSE, P.O. ALOOR VIA, KECHERY MATTOM THRISSUR - 680 683 11. THOMAS M.G S/O.M.T. GEORGE, MALIYAMMAVU HOUSE, MATTOM THRISSUR, THALAPPILLY TALUK, ALOOR VILLAGE THRISSUR DISTRICT. 12. M.I. ANTO, S/O. MULLAKKAL INASU, MULLAKKAL HOUSE, MATTOM P.O. THRISSUR DISTRICT- 680683. 13. FR. VARGHESE PALATHINGAL VICAR, ST. THOMAS FORANE CHURCH, MATTOM DESOM THRISSUR DISTRICT. 14. M.K. VARGHESE, S/O. KOCHAPPAN, MULAKKAL HOUSE, CHELUR MATTOM, THRISSUR DISTRICT - 680 683. 15. STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT THIRUVANANTHAPURAM - 695001.

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R.F.A. NO.358 OF 2014

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THE SECRETARY, GENERAL EDUCATION (F) DEPARTMENT GOVERNMENT OF KERALA, SECRETARIAT THIRUVANANTHAPURAM-695001.

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THE DIRECTOR OF PUBLIC INSTRUCTIONS DPI'S OFFICE, THIRUVANANTHAPURAM- 695 001. 18. THE DPEUTY DIRECTOR OF EDUCATION THRISSUR DISTRICT - 680 001. 19. THE DISTRICT EDUCATIONAL OFFICER, CHAVAKKAD, THRISSUR - 680 506. 20. THE DISTRICT REGISTRAR (GENERAL) DISTRICT REGISTRAR OFFICE, THRISSUR -26. 21. C.F. DAVIS S/O. FRANCIS, MEMBER, ST. FRANCIS READING ASSOCIATION MATTOM, PERMANENT ADDRESS CHIRAMMAL, EDAN P.O. MATTOM -680602, THRISSUR DISTRICT NOW WORKING AND RESIDING AT EMC, DAS ISLAND, ABUDABI UAE. 22. BIJULAL JAMES S/O. JAMES, MEMBER, ST. FRANCIS READING ASSOCIATION MATTOM, THRISSUR - 680 502 WITH PERMANENT ADDRESS PULIKKOTTIL HOUSE P.O. CHOONDAL, PARANNORE, TRICHUR, KERALA NOW WORKING AND RESIDING AT AL. HOKOOK - IPBO CEDER-II, VULK FUEL, P.B. NO. 461.09 FAMAHEEL 64012, KUWAIT. 23. SANJU THOMAS S/O. THOMAS, UPSA ST. FRANCIS HIGH SCHOOL FOR GIRLS MATTOM VELLARA HOUSE, KOONAMOOCHI, VIA KECHERY MATTOM THRISSUR - 680 602. 24. ANIT K. VARGHESE D/O. VARGHESE UPSA. ST. FRANCIS HIGH SCHOOL FOR GIRLS MATTOM THRISSUR - 680 602. 25. DEJO JOSEPH E. S/O. JOSEPH, UPSA, ST. FRANCIS HSS MATTOM THRISSUR- 680 602. 26. P.T. JAISON S/O. THOMAS, FTM ST. FRANCIS HSS MATTOM THRISSUR- 680 602. 27. SUNNY P.A. S/O.P.C. ANTONY, FTM ST. FRANCIS HIGH SCHOOL FOR GIRLS, MATTOM THRISSUR- 680 602. 28. NATIONAL COMMISSION FOR MINORITY EDUCATIONAL INSTITUTION GOVERNMENT OF INDIA, NEW DELHI- 1 REPRESENTED BY ITS SECRETARY.

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R.F.A. NO.358 OF 2014

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JAMES, S/O. KURYAN, CHAKRAMAKKIL HOUSE, ALOOR P.O. ALOOR VILLAGE, THALAPPILY TALUK, VIA KECHERI MATTOM- 680 602.

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FRANCIS S/O. LONAPPAN, THALAKKOTTUR HOUSE, KUNAMMOOCHI P.O. ALOOR VILLAGE, THALAPPILLY TALUK THRISSUR DISTRICT - 680 602. 31. PIUS T.L S/O. T.C. LONAPPAN, KOONAMUCHI P.O, PIN - 680504. 32. E.A. JOSE S/O.E.T. AIPPUNNY, EMMATTY HOUSE, P.O. MATTOM THRISSUR - 680 602. 33. E.K. DEVISAN, EDAKALATHUR HOUSE, P.O. MATTOM THRISSUR - 680 602. 34. C.C. ANTONY CHITTILAPPILLY HOUSE, P.O. MATTOM THRISSUR - 680 602. 35. K.J. THOMAS KAKKASSERY HOUSE, P.O. MATTOM THRISSUR - 680 602. 36. T.D. GEORGE S/O.T.T. DEVASSY, THALAKKOTTUR HOUSE, P.O. VAKKA MATTOM, THRISSUR - 680 602. 37. K.P. THOMAS S/O.K.U. PETER, KAJIAMAKAYIL HOUSE, P.O MATTOM THRISSUR - 680 602. 38. C.T. DEVASSY S/O. C.C.THOMA, CHIRAMMEL HOUSE, P.O. NAMBAZHIKKAD MATTOM, THRISSUR - 680602. 39. K.R. LONAKKUTTY S/O. RAPPAI KUTTOR, KUTTOOR HOUSE, P.O. MATTOM THRISSUR. 40. K.M. ANTONY S/O. MATHEW, KAKKASSERY HOUSE, P.O. VAKKA MATTOM, TRISSUR. 41. C.J.JOHNY S/O. JOSEPH CHOVALLOOR, CHOVALLUR HOUSE, P.O. MATTOM THRISSUR - 680 602. 42. C.A. THOMAS S/O.C.T. ANTONY, CHIRAMMEL HOUSE, P.O.MATTOM THRISSUR - 680 602.

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R.F.A. NO.358 OF 2014

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C.C. SIMON, S/O. CHAKKUNNY, CHAKKRAMAKIL HOUSE, P.O. MATTOM THRISSUR - 680 602. 44. C.S. THOMAS S/O. C.T. SIMON, CHITTILAPPILLY HOUSE, P.O. MATTOM THRISSUR - 680 602. 45. K.O. THOMAS S/O. K.T. OUSEPH, KAKKASSERY HOUSE, CONVENT ROAD P.O. MATTOM, THRISSUR - 680 602.

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JOHNSON KAKKASSERY S/O.K.O. IYYUNNY, KAKKASSERY P.O. ALUR, MATTOM THRISSUR - 680 602.

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MONSEIGNEUR FR. GEORGE EDAKKALATHOOR VICAR, ST. THOMAS FORANE CHURCH, MATTOM DESOM THRISSUR DISTRICT.

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IT IS RECORDED THAT THE 3^RD RESPONDENT IN THE ABOVE APPEAL IS NO MORE AND DIED DURING THE PENDENCY OF THE ORIGINAL SUIT BEFORE THE COURT BELOW AND HIS SON HAS ALREADY IMPLEADED AS 11^TH RESPONDENT IN THE ABOVE APPEAL AS PER ORDER DATED 25.07.2016 VIDE MEMO DATED 18.06.2014 BEARING CF NO.3140/14.

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ADDITIONAL RESPONDENT IMPLEADED:

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ADDL.48. JOSEPH CHAKKUNNY KAKKASSERY @ MOHIT CHAKKUNNY KAKKASSERY AGED 27 YEARS, S/O CHAKKUNNY K.J. @ JOMON (DIED) WITH PERMANENT ADDRES AT KAKKASSERY HOUSE THAVOOS LANE, MISSION QUARTERS, THRISSUR-1, PIN:680602

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LR OF DECEASED R9 IS IMPLEADED AS ADDITIONAL 48^TH RESPONDENT AS PER ORDER DATED 25.07.2016 IN I.A. NO.592 OF 2016.

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R1,R2,R4 TO R8, R10 & R11, ADDL.R48 BY ADVOCATE PHILIP ANTONY CHACKO, SRI.M.R.MOUNEESH R12 & 14 BY ADVOCATE SHRI R.SANJITH R15 TO 20 BY GOVERNMENT PLEADER SHRI P.M. SATHEESH R23 TO R27 BY ADV. SMT.P.LISSY JOSE. R28 BY SHRI N. NAGARESH, ASSISTANT SOLICITOR GENERAL R29 & 30 BY SENIOR ADVOCATE SHRI T. SETHUMADHAVAN, SHRI K.JAYESH MOHANKUMAR, SHRI.PUSHPARAJAN KODOTH SMT.VANDANA MENON & SMT.DEEPA N. R32, R37, R38, R40, R45 & R46 BY ADV.T.C. SURESH MENON, SRI.P.S.APPU & NIMOD A.R.

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THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ALONG WITH R.F.A. NOS.360 & 616 OF 2014 ON 27.06.2017, THE COURT ON 11.07.2017 DELIVERED THE FOLLOWING:

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V. CHITAMBARESH

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SATHISH NINAN, JJ .

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= = = = = = = = = = = = = = = = = = R.F.A. Nos.358, 360 & 616 of 2014

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= = = = = = = = = = = = = = = = = = Dated this the 11^th day of July, 2017

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J U D G M E N T

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SATHISH NINAN, J .

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The tussle between a Church and an Association over the ownership and management of three schools, is the subject matter of the lis from which these appeals arise. R.F.A. No.358 of 2014 is filed by the Church who is the 1^st defendant, R.F.A. No.360 of 2014 is filed by Defendants 19 and 20 who support the 1^st defendant, and R.F.A. No.616 is filed by the 1^st plaintiff Association, challenging the portions of the decree against each of them.

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The 1^st plaintiff Association and the 1^st defendant Church are at loggerheads as to who among them is the owner and educational agency of the three schools, viz., St.Francis Boys High School (Mattom), St.Francis Girls High School (Mattom) and St.Francis Lower Primary School (Mattom). According

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R.F.A. Nos.358, 360 & 616 of 2014

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to the plaintiffs, in the year 1906, 18 members of the Church established St.Franciscose Shavriyar Vayana Samajam with the objective of conducting schools, charitable institutions, reading rooms etc. There were no written bye-laws or rules for the Association. The transactions were conducted as per majority decisions. The Association is conducting the three schools mentioned above. In the year 1968 a constitution was framed by the Association for the management and conduct of the schools. The constitution was approved by the Education Department. Exhibit A90, pages 29 and 30 contain the proceedings of the Regional Deputy Director of Public Instruction, approving the Constitution. In terms of the Constitution, the President of the Association shall be the Manager of the schools (Clause 6), Vicar of the Church is to be the President (Clause 7) and the term of office of the Manger is till he is transferred from the Parish (Clause 8). On 11.01.1998, in the meeting of the Association, Clauses 6, 8 and 9 of

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R.F.A. Nos.358, 360 & 616 of 2014

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the Constitution were amended with 3/4^th majority. The amendment was to the effect that Manager is to be elected from the members of the Association, thus taking away the right of the Vicar to be the Manager. The term of office was fixed as three years. The Approval of amendment of the bye-laws though originally rejected by the Director of Public Instruction, was finally accorded pursuant to the proceedings in O.P. No.17955 of 2001 and W.A. No.113 of 2002 before this Court. Subsequently, pursuant to the decision of the Association on 06.09.1998, the Association was registered under the Travancore Cochin Literary Scientific and Charitable Societies Registration Act, 1955 (for short, “the 1955 Act”) with Reg.No.1180 of 1998. In terms of Clause 17 of the bye-laws of the registered Association, for amendment of the bye-laws, 5/8^th majority of the members is necessary. As regards the amendment of bye-laws, followed by the election and appointment of Manager, the approval of Manager by Education

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R.F.A. Nos.358, 360 & 616 of 2014

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Department, etc., there were series of Writ Petitions before this Court. In the writ proceedings, though appropriate directions were given regarding the management of the schools, the question was left open to be decided in the civil suit pending between the parties. The plaintiffs also claim title over the properties and assets wherein the schools are functioning, including its playground.

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The defendants denied the plaintiffs' claim regarding title over the assets, the ownership and management of the schools. According to the defendant-Church, the Association is not the owner of the schools or is its educational agency. The schools and its assets belong to the Church. The Association is only an organisation under the Church. In the year 1893, a L.P. School was started by the Church in its compound which was later upgraded as a Middle School by the year 1920 and later as a High School in the year 1944. In the year 1961, the L.P. School was separated from the

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High School. Thereafter in the year 1968, the High School was bifurcated into Boys and Girls High Schools. It is the defence contention that there was a move from the diocese of Thrissur of which the 1^st defendant Church is a constituent, to constitute a corporate management for all the schools under the diocese. The parishmen of the 1^st defendant Church wanted to retain the management of the schools and in furtherance of their object, constituted the Association, viz., St.Francis Reading Association. The Association was controlled by the Vicar who was to be its President. The Association was only in the nature of an advisory committee and had no independent existence apart from the Church. The meeting of the Association on 11.01.1988 and the resolution passed therein amending the bye-laws of the Association taking away the office of the Vicar as the Manager of the educational agency are challenged as having no legal sanctity and validity. It is alleged that no notice of the said meeting was given to the Vicar,

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R.F.A. Nos.358, 360 & 616 of 2014

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who is the President of the Association. It is also contended that the meeting is vitiated by fraud. A counter claim is raised seeking a declaration that the schools, its management and assets belong to the 1^st defendant Church. The basic dispute between the parties is as projected above. The plaint and the counter claim raised in the written statement takes in other reliefs also, which are only consequential on the adjudication of the basic disputes as to title and management.

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The court below on appreciating the evidence held that the 1^st plaintiff Association is the owner and the educational agency of the schools. The title over the property in which schools are situated were found to have been not established.

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Heard the learned Senior counsel Shri S.Sreekumar, learned Senior Counsel Shri S.Sethumadhavan and learned counsel Shri Philip Antony Chacko for the respective parties.

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Learned Senior Counsel challenges the

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R.F.A. Nos.358, 360 & 616 of 2014

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identity of the 1^st plaintiff Association. According to the counsel, as the very names indicate, “St.Franciscose Shavriyar Vayana Samajam', 'St.Francis Reading Association' and 'St.Francis Vayana Samajam' are different Associations and the plaintiffs are attempting to project a case as if they are one and the same Association. At the very outset we may indicate that the said contention though at the first blush appear to be attractive, on going through the pleadings, we find it to be bereft of substance. According to the plaintiffs, on 01.01.1906 under Ext.A1, an Association was formed which was styled as “St.Franciscose Shavriyar Vayana Samajam”. Vicar of the Church was its President. The schools were run by the said Samajam. In the year 1968 to comply with the requirements under the Kerala Education Act and Rules, a constitution was framed wherein the Association is styled as “St.Francis Reading Association”. Plaintiffs claim that the Association was registered in the year 2001 and the name of the

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Association is “St.Francis Vayana Samajam”. Therefore, the plaintiffs contend that it is one and the same Association. According to the defendants, going by the very names of the Associations it is evident that the 1^st plaintiff Association is different from the educational agency said to be constituted as per Ext.A90 constitution in the year 1968 and also from the registered Association. Learned Senior Counsel would refer to Exts.B1 and Ext.A100 to canvass the submission that these Associations are different or that more than one Association is in existence.

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Therefore, according to the defendants, the 1^st plaintiff Association could not, by any stretch of imagination, be construed to be the educational agency. The said contention of the defendants dwindles into insignificance on the face of the pleadings in the written statement of the 1^st defendant Church, adverted to hereunder:

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“Para 8: When the samajam were renamed as Reading Association, the members of the samajam continued as such. At that time there were 15 members and they

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R.F.A. Nos.358, 360 & 616 of 2014

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continued as the members of the reading Association.

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Para 9: The vayana samajam committee continued as reading association committee.”

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Para 12: In the year 1965-68 the name of the vayana samajam was changed as St.Francis Reading Association, Mattom for the purpose of creating a constitution of the educational agency, to retain the management of the schools under the church itself.”

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Para 43: The plaintiffs are not entitled to get any decree as prayed for. The above written statement is filed under Order 8 Rule 6A of the CPC. The 1^st defendant is entitled to get a declaration that the 3^rd defendant church is the owner in possession of the counter claim schedule properties and to declare that St.Francis Reading Association Register No.1180/98 is a transformed form of unregistered St.Francis Reading Association and its prior organisation St.Francisco Savaraiar Vayana samajam, an organ of the 1^st defendant church and it has no independent existence other than the church and the constitution formed under the name of St.Francis Reading Association (unregistered association) mainly for the purpose of getting approval from the education department to get the status as a corporate educational agency and the plaintiff have no perpetual right to continue as members of the St.Francis Reading Association and that the membership is not heritable.”

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Relief (b): to declare that the three schools namely (1) St.Francis Boys High School and Higher Secondary School, Mattom (2) St.Francis Girls High School, Mattom and (3) St.Francis L.P. School, mattom belong to the Educational

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Agency of St.Francis Reading Association Educational Agency, Mattom, Aloor Village, Thalappally Taluk, Trichur (Dt.) (Association) and the name of the Educational Agency shall be St.Francis Reading Association of Educational Agency, Mattom (Association)”.

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(emphasis supplied)

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From the above it is evident that even according to the Church, the present St.Francis Reading Association bearing Reg. No.1180 of 1998 is a transformed form of St.Franciscose Shavriyar Vayana Samajam or in other words, it is one and the same Association. In fact it is the case of the plaintiffs also that at certain point of time the name of the Association was changed as St.Francis Reading Association. Use of the terms “Reading Association” and “Vayana Samajam” inter-changedly is not much of a significance since it is only the literal Malayalam translation of the English term. It is especially so in the light of the statements and reliefs in the written statement, above referred to. Therefore, we find that the confusion sought to be created by the defendants regarding the identity of the 1^st plaintiff is unsustainable.

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R.F.A. Nos.358, 360 & 616 of 2014

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Now coming to the main dispute between the parties regarding the ownership of the schools, whether the schools belong to the Church or the Association and as to who is the educational agency, as noted supra, there had been series of writ proceedings before this Court. The judgments in the writ proceedings though gave directions for continuance in management of the schools, left open the rights to be agitated before the civil court. In the circumstances, we are required to enter a finding independent of the orders and judgments passed in the writ proceedings.

¶87

Though the plaintiffs contend that the schools were started by the Association, there is no material available to find so. No concrete evidence has been adduced from either sides as regards the initial establishment of the schools. In fact the available evidence which is the minutes book of the Church, viz., Ext.B5 to B8 reveal that there was active involvement by the Church regarding the functioning of the schools. From the

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R.F.A. Nos.358, 360 & 616 of 2014

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pleadings and evidence it comes out that at some point of time, the ownership with the right of management of the schools came to be vested with the Association. Here, the contentions in paragraph 7 of the written statement of the 1^st defendant church are relevant:

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“After obtaining independence all the States in India introduced new legislation in almost all fields including education. The Govt. of Kerala introduced Kerala Education Act and Rules in the year 1958. The first defendant Church and the Vicar continued as the manager under the deeming provisions of the Act & Rules. The 1^st defendant church belongs to Roman Catholic @ Zero Malabar Church coming under the Catholic Bishop of Trichur diocese and there was an impression that the properties of the church belong to Bishop or Pope. During that time there was open discussion among the members of Catholic Community including the parishners of the 1^st defendant Church as to whether all the school coming under the diocese of Trichur should be put together under one corporate management or not. The parish men of the 1st defendant church deferred and wanted to retain the management of the school and found out a suitable method to get over the legislative hurdles as well as the desire of the diocese by constituting an association named St.Francis Reading Association Corporate Educational Agency, controlled by the vicar of the 1st defendant church and

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remained as an unregistered body and an independent corporate management. As the said association named St.Franciscos Savariyar Vayana Samajam there were several associations in the church under the direct control of vicar such as Darsana Sabha, Catholic Union, CLC, St.Vincent De Paul, Choir group, Sunday Catechism, etc. The said associations had no approved bye-laws. A byelaw was prepared for purpose of constituting an educational agency in the name St.Francis Reading Association, Mattom in the year 1968 and with that bye laws applied to the Regional Deputy Director, EKM applied to the RDD Ernakulam for approval of the educational agency. The RDD however approved the educational agency in the name stated above. Under the said constitution the vicar of the church shall be the president of the agency and the president shall be the manager. Thus the entire right was thus retained with the vicar of the church or vested in him. The said association was accepted as the educational agency by the department even in the absence of the property in its name was for the reason that the Vicar of the First defendant Church was the president of the association and the manager of the School, who had the absolute control over the properties of the Church.”

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(emphasis supplied)

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Further, in paragraph 43 of the written statement, the formation of St.Francis Reading Association as a corporate educational agency is admitted though it is contended that it was for the purpose of

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R.F.A. Nos.358, 360 & 616 of 2014

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getting approval from the Education Department. Therefore, from paragraphs 7 and 43 of the written statement it admits of no doubt that to screen/veil the schools from being taken over by the corporate management proposed by the Thrissur diocese, they constituted the St.Francis Reading Association as the corporate educational agency for the schools in question. Though the defendants would contend that the Association was a creature of the Church without any rights vested in it and that the real owner of the schools continued to be the Church, in view of the admissions made by them regarding the constitution of the St.Francis Reading Association as educational agency it does not lie in their mouth to contend that the Association is not the educational agency. The Government approved the educational agency. Here it is further worthwhile to note the pleadings in paragraph 7 of the written statement to the effect that since the year 1944 the entire financial transactions of the schools were recorded in the accounts of the Samajam and

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not in the accounts of the Church. Relevant portion in paragraph 7 of the written statement is extracted hereunder:

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“However, from 1944 onwards the samajam assisted the vicar in collecting the fees and other contributions and disbursement of the salary of the teachers and offices staffs. For transparency the entire financial transactions were recorded in the accounts of the samajam and that will not reflect in the account of the church, since the church wanted to have a loss and profit account on running the school for the educational charity.”

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Exhibit A90 which contains the minutes of the meeting of the Association held on 18.08.1968 for the making of a constitution for the educational agency, is very significant. It shows that the Vicar of the Church was present in the meeting and had presided over the same in his capacity as the President. The decision of the said meeting is to the following effect. The vernacular portion is extracted hereunder:

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“സമ�ജത�ന� ക�ഴ�ല � ള വ�ദ��ഭ��സ സ��പനങള�ന�

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മ�നനജ�നമ��ന�യ� ത�നഴ ന�ർകന ബ$നല�സ� വ�ദ��ഭ��സ ഡയറക��റ�ന� അ(ഗ�ക�രത�ന സമർപ�ച �^{അ(ഗ�ക�ര(}

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R.F.A. Nos.358, 360 & 616 of 2014

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വ�ങ�വ�ൻ മ�നനജനര അധ�ക�രനപ��ത�യ�ര�കന.”

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(emphasis supplied)

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It is stated that the manager is being authorised to submit the bye-laws relating to the management of the schools under the Association/Samajam to the Director of Education for approval. It is acknowledged therein that the schools are under the Association/Samajam. Further, in the constitution it has been affirmed that the schools belong to the St.Francis Association. Pages 29 and 30 of Ext.A90 are the proceedings of the Regional Deputy Director of Public Instruction approving the Constitution of the educational agency. Therein the names of the schools under the educational agency are specifically shown. There is no evidence to the contrary to lend credence to the contention of the 1^st defendant/church that the 1^st defendant is the educational agency and the owner of the schools in question. In the light of the above, we have no hesitation to hold that the ownership and management of the schools vest with St.Francis

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Reading Association and that it is the educational agency. However we make it clear that by the term 'ownership' we have meant incorporeal ownership over the schools.

¶115

The constitution of the 1^st plaintiff Association approved by the Director of Public Instruction on 23.12.1968 was amended by the Association in its meeting held on 11.01.1998. Prior to the amendment, clauses 6, 7, 8 and 9 of the bye-laws stood thus:

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“6. The president of the St.Francis Reading Association, Mattom shall be the Manager of all the schools under the Educational Agency.

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The President of the St.Francis Reading Association, Mattom shall be the Vicar of the Roman Catholic Parish Church, Mattom.

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The term of office of the Manager shall terminate when he is transferred from this Parish and thereby terminate the office as the President of St.Francis Reading Association.

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The vacancy thus arises will be immediately filled up by the vicar, who succeeds him, in the Parish Church, Mattom.

¶120

After amendment clauses 6, 8 and 9 of the byelaws are as under:

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“6. The person elected from the members of St.Francis Reading Association, Mattom shall be the Manager of all the schools under the educational agency.

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The term of office of the Manager so elected, shall be three years from the date of election.

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The term of office of the President shall be immediately reported to the Educational Department and approval obtained.”

¶126

In paragraph 13 of the written statement of the first defendant it is alleged that no meeting of the Association was convened on 11.01.1998, that the Vicar was not served with any notice regarding the meeting, that the meeting was illegal and that the general body of the Association had no right or authority to amend the Constitution, that the meeting is vitiated by fraud and does not have any legal sanctity. In the order dated 11.03.2002 of the Director of Public Instruction approving the amended constitution, it has been observed that the approval is subject to final decision by the civil court in this regard. In considering the validity of the meeting held on 11.01.1998 and the subsequent decision to register the Association,

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the averments in paragraphs 9 and 18 of the written statement of the 1^st defendant are significant and are referred to hereunder.

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“Para 9: But unfortunately the then existing committee members of the reading association forgetting the reason for the formation of the association and the object behind it, convened a meeting on 1.1.1998 behind the back of the vicar and without his knowledge took a decision amending the constitution of the educational agency under the St.Francis Reading Association usurping the powers of the vicar. The amendment incorporated election of a manager from the committee instead of the perpetual post of vicar as the president of association and the manager of the Agency. The reading association or its members had no such right to amend the constitution of the Educational Agency. The powers of the Committee of the Reading Association is not mentioned anywhere in the constitution. The Association is not mentioned anywhere in the constitution. The association has no registered bye-laws at that time. They existed under the vicar or the church and they had no independent existence. Therefore, the said resolution had no legal sanctity or validity. The said amendment was sent to the DPI for approval and the same was rejected by the DPI, many occasions, for the reason that the vicar cannot be ousted from the management of the schools. Later in the year 2001, the same was approved as directed by the Hon'ble High Court of

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Kerala. In the month of September, 1998 the reading association committee prepared a memorandum of association and bye-laws and got it registered as St.Francis Vayana Samajam, Mattom under the Travancore-Cochin Literary Scientific and Charitable Societies Registration Act, 1955. Thus the registered association illegally usurped the powers of the vicar and the church.

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Para 18: During the period at which the constitution of the corporate management was approved by the parishioners, the association was not registered. There was no intention to register the association on the part of the parishioners or the church as the other organisations or associations under the church were also not registered. A few of the members who with a civil institution of acquiring the right, powers, etc., which in normal course they would not get, clandestinely decided to prepare a document in this form of an amendment to the constitution of the corporate management and those few were not aware of the sudden agenda, participated in the meeting and supported the amendment. Within a few months, they prepared a memorandum and bylaw and got it registered under the Travancore-Cochin Literary Scientific and Charitable Societies Registration Act, 1955. For the said purpose also only a few of them conspired together and the rest of them were unaware of the civil intention behind it. Their intention was to restrict the membership of the association and confine the rights and privileges to themselves to the detriment of the church and the parish. The mala fide intention is manifested in the

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memorandum, as well as the bye-laws. The provisions contained in the bye-laws are against law and in fact unsustainable.”

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(emphasis supplied)

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From the above, it is revealed that undisputedly the existing committee members of the Association were present in the meetings and that the committee took the decision to amend the constitution and also to register the Association under the 1955 Act. The allegation is to the effect that the members of the Association were unaware of the mala fide intention and thereby they happened to take part in the meeting and support the amendment and the proposal to register the Association. Incidentally, it would be relevant to refer to the judgment of this Court in O.P. No.30858 of 1999 which was filed challenging the order of the Director of Public Instruction rejecting the application for approval of the amended constitution, wherein referring to the counter affidavit of the 4^th respondent therein who is the vicar of the church it has been observed that there

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is no contention that the Vicar of the church was not invited for the meeting in which the amendment was considered. So is the finding of this Court in its judgment dated 10.04.2002 in W.A. No.855 of 2002 holding that the amendment to the constitution and its approval have become final. The relevant portions of paragraphs 6 and 7 of the said judgment are as under:

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Para 6: “R.P. No.230 of 2002 was heard by us and by our judgment rendered, today we have summarily dismissed. Hence, the Review Petition as not maintainable. The order in W.A. No.113 of 2002 made on 28.2.2002 remains. In other words, the direction to the Director of Public Instructions to approve the amendment made to the constitution of the appellant association remains unchallenged and unvaried. Consequently, the Director or Public Instructions was bound to approve the said amendment. The approval of the amendment was given by Ext.P14 order. In other words, the amendment to the constitution and its approval have become final.

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Para 7: “...In view of the dismissal of the Review Petition, we hold that the amendment to the constitution has become final.”

¶145

Apart from the above it is to be noticed that the 1^st defendant Church as plaintiff represented by its

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Vicar had filed Ext.A8 suit, O.S. No.494 of 2002 before the Sub Court, Thrissur challenging the meeting dated 11.01.1998 and the amendment of the constitution. The suit was originally decreed. An appeal was preferred before this Court by the 1^st plaintiff herein as R.F.A. No.384 of 2005 as is revealed by Ext.A9. Pending appeal, the suit itself was withdrawn by the plaintiff. Resultantly, there is no challenge as against the validity of the meeting held on 11.01.1998 for amendment of the constitution and the meeting held on 06.09.1998 wherein decision was taken to register the association. Conspicuously in the counter claim filed in the present suit also, there is no such relief on the above said lines. The amendment is of the year 1998 and the registration is of the year 2002. Suffice to say that the amendment to the constitution and the registration of the Association remain unchallenged. Here it is also relevant to refer to the minutes of the meeting of the Association held on 28.06.1998 wherein also the

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Vicar of the Church had attended thereby implying the acceptance of the amendment. As seen from Ext.A89, the general body of the Association decided to have the Association registered, pursuant to which the same was registered. Pertinently, there is no allegation or pleading to the effect that persons who were not members of the Association had attended the meeting held either on 11.01.1998 or the meeting dated 06.09.1998 wherein the decision was taken for registration of the Association. From the above discussions, the only conclusion that could be arrived at is upholding the amendment to the constitution and the registration of the Association under the 1955 Act.

¶152

Learned Senior Counsel referring to Section 2(2) of the Kerala Education Act (hereinafter referred to as “the Act”) would contend that 'educational agency' is the person or body of persons permitted to establish and maintain any private school under the Act, and therefore only the one who established and is maintaining the

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school could be the educational agency. According to him since it is in evidence that it was not the 1^st plaintiff Association which established the schools, it could not be the educational agency in terms of the Act. It is to be noticed that Section 2(2) of the Act mentions about the permission to establish and maintain any private school under the Act, which refers to the permission under the Act. What about the preexisting schools? Here, section 3 (4) of the Act is significant. The main part of the said Section provides that “All existing schools shall be deemed to have been established in accordance with the Act” (proviso omitted as not relevant). Therefore, in the case of the present schools, since they were in existence much prior to the coming into force of the Act it is deemed to have been established and maintained under the Act. The deeming provision comes into operation. Therefore, the submissions on the said ground is of no avail.

¶156

The learned Senior Counsel would submit

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that under the Kerala Education Rules only two types of educational agencies are contemplated, they being (i) Individual education agency and (ii) Corporate educational agency. In 1968 at the time when constitution was framed for the association, if the group of members who constituted the association were in management as contended by the plaintiffs, it could not be an individual educational agency since the right was not vested in an individual, and could not have been a corporate educational agency since the association did not have a registered agreement as was required under the Kerala Education Rules. According to the counsel the agency was approved as a corporate educational agency only because the right of management was vested with an ecclesiastical office of a religious denomination namely the Vicar of the church. It is further contended that the very fact that the agency was approved as a corporate educational agency would itself show that the Vicar was in management and not the association.

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According to the learned counsel, two or more persons if in management, could be recognised as a 'Corporate Educational Agency' only if the said association was registered. For the sake of convenience, Rule 1 of Chapter III of the Kerala Education Rules is extracted:

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“1. Classification of private Educational Institutions.Private Educational Institutions may be classified into two categories viz (i) those under individual Educational Agency and (ii) those under Corporate Educational Agency. Where the right to conduct the school is vested in an individual in his own right or as the legal representative of a joint family, the Educational Agency shall be termed 'Individual Educational Agency', and in all other cases the Educational Agency shall be termed 'Corporate Educational Agency' Corporate Educational Agency shall include cases where the right is vested in (a) two or more persons jointly with written registered agreement (b) a Board or Society or Association or Company or institution registered under a statute or created by a statute (c ) an institution or Trust and (d) an ecclesiastical office of any religious denomination.”

¶164

It is relevant to note that the rule after describing an individual educational agency says that, “...in all other cases the educational agency shall be termed 'Corporate Educational Agency'”.

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Two or more persons together in management of a school would fall under 'Corporate Educational Agency' and not an 'Individual Educational Agency'. By the latter part of the rule, specifically including two or more persons in joint management under a registered agreement as a 'Corporate Educational Agency', all that is intended is to clarify that more than one person in joint management even if under a registered agreement, will not be treated as a case of individual management namely 'individual educational agency' but as a 'corporate educational agency'. In Somanatha Pillai v. State of Kerala (2007[1] KLT 127), a Bench of this Court held that more than one legal representative of an individual manager in joint management would constitute a 'Corporate Educational Agency'. The view that we have adopted is in conformity with the earlier bench decision referred to. Therefore the contention that since the educational agency is recognised as a corporate educational agency, the Church/Vicar shall be

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deemed to be in management, is not liable to be accepted.

¶171

Yet another issue that arises for determination is regarding the number of members that constitute the Association and their identity. The plaintiffs would contend that there were 18 members at the time of formation of the 1^st plaintiff Association, for which there is no evidence. It is the case of the plaintiffs that 18 Roman Catholic Families of Mattom formed an association on 01.01.1906. The eldest male child in the family is to become a member of the Association. Three families lost their membership since they did not have male children. Therefore according to the Association there are only 15 members. Here paragraph 8 of the written statement is of significance. The relevant portion is extracted hereunder:

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“8. When the samajam were renamed as Reading Association, the members of the samajam continued as such. At that time there were 15 members and they continued as the members of the reading association.”

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The number of the members as contended by the plaintiffs tally with the admission in the written statement and hence it could not be disputed that the members of the Association is 15 in number. So also clause (4) of Ext.A89 registered bye-laws of the Association provides that there are 15 members in the Association. Then the question arises as to who all are the 15 members. Plaintiffs contend that they are plaintiffs 2 to 10 and defendants 2, 4, 11 and 12. In paragraph 40 of the written statement of the church it has been stated thus:

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“The plaintiff 2 to 10 who were the members of the reading room association which is an organ of the church has clandestinely registered the association....”.

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So it is more or less admitted that plaintiffs 2 to 10 are members. Defendants does not specifically mention about the identity of the 15 members. From Ext.A12, the minutes of the meeting held on 28.06.1998 it is evident that 13 members were present in the said meeting. The vicar of the Church was also present in the said meeting. The judgment of this Court in O.P. No.17955 of 2001 is

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of significance in this context. In paragraph 4 therein it is held thus:

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“The third defendant does not have a case before we that the participants of the meeting held on Ext.P3 were not successor of any original members of the association. As per the constitution of the association, the original members formed general body and in the event of death of any of the original member, eldest son of the member shall be the member of the association in the place of the association. The 3 rd respondent does not have a case that any of the signatories to the meeting held on 11.01.1998 does not represent any of the original members. In the absence of such contention the findings of director does not have any basis.”

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(emphasis supplied)

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Therefore it appears that there is not much of a dispute regarding the identity of the members who constitute the association. The court below took note of the fact that the averments in the plaint regarding the identity of the members are not specifically denied in the written statement. It assumes significance since the defendants have admitted in the written statement that the Association contains 15 members. Admittedly, one K.J. Jose who was elected as the Manager in the

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year 1998 is also a member of the Association and he is no more. The plaintiffs refuse to acknowledge his son as a member since according to them the eldest son of a late member has to affix his signature in the register of the Association acknowledging and accepting the membership whereby he becomes a member of the Association. Since that has not been done, he is not a member. The membership will have to be assumed by a person entitled to it in accordance with the procedure as prescribed under the bye-laws. At any rate, it is found that plaintiffs 2 to 10, Shri M.M.Francis who represents the Association in the suit as its Secretary, and defendants 2, 4, 11 and 12 are the members of the Association, and that the eldest son of late K.J. Jose is entitled to be a member of the Association.

¶187

Coming to the dispute over title to the properties and buildings wherein the schools are situated, the court below found that the plaintiffs claim title over the properties relying on ExtsB2

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to B4, B21 to B27 documents and the 1^st defendant Church claims rival title relying on ExtsA17 to A27 and A110 to A135. The court below found that identity of the properties covered under the respective documents of title has not been established without which it could not be found as to in whose document of title the school buildings and the land are taken in. We do not find any error in the said finding. At this stage it is to be noticed that before this Court, the 1^st defendant Church has filed I.A. No.1022 of 2017 to appoint a Commissioner to measure out and identify the counter claim schedule properties with reference to documents of title. We feel that for a proper determination of the issue involved and to pass a proper judgment on the respective rights of the parties, an opportunity is to be granted to identify the properties with reference to the respective documents of title. Hence I.A. No.1022 of 2017 will stand allowed. Appropriate directions will be made in the latter part of the judgment.

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Plaintiffs challenge ExtB45 decision dated 22.09.2006 and the meetings and decisions alleged to have been taken by few members of the Association on 22.12.2008, 24.05.2009, 23.08.2009 and 29.09.2009, electing the 3^rd defendant as the Manager, amending the bye-laws of the registered Association, etc. The court below found that the meetings challenged by the plaintiffs were not properly convened, that notice of the meetings were not given to all the members of the Association and that only two members out of the total number of members attended the meeting. It was held that the said meetings are not valid. It was found that ExtB45 cannot be pertaining to the 1^st plaintiff Association. Since the meeting held on 29.09.2009 was found to be not valid, the alleged amendment to Ext.A89 bye-laws claimed to have been effected in the said meeting was also found to be invalid. The approval granted by the 10^th defendant for the same is also found to be illegal. The said meetings are attended by 2 members. When the Association

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consists of 15 members it could not be conceived as to how 2 of the members could have held a meeting and decide to amend the bye-laws of the Association. The finding regarding the validity of the meetings have been entered into by the court below on sufficient material. We do not find any reason to interfere with the said finding.

¶197

Plaintiffs have raised a claim for

¶198

Rs.2,80,000/- as damages alleging that 20000 laterite stones were cut and removed from the playground of the schools. The court below has declined to grant the said relief. As indicated supra, title over the land and school buildings could be ascertained only after due identification of the properties with reference to respective documents of title. Therefore, the finding on the claim for damages by the court below is set aside and is directed to be reconsidered after identification of the properties. In the meantime, the decree passed by the court below to preserve the properties and assets of the schools shall hold

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good.

¶202

As regards the relief of declaration that St.Francis Reading Association with Reg.No.1180 of 1998 is the continuation of St.Francis Shavriyar Vayana Samajam started in the year 1906, in view of the findings entered into supra, we do not find any reason to deny the said relief to the plaintiffs. The court below has not assigned any reason for denying the said relief. The declaration as sought is granted.

¶203

Reliefs claimed in the suit with reference to or basing on title are left open to be decided after obtaining a Commissioner's report and plan identifying the properties with reference to the title deeds. Findings to the contrary in the impugned judgment are set aside.

¶204

In the result, the appeals are allowed in part. Finding of the court below as regards title over the counter claim schedule properties and the consequent decree will stand set aside and the matter is remanded to the I Additional Sub Court,

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Thrissur for determination on the issue of title after affording opportunity to the defendants to take out a commission to identify and establish the title over the properties with reference to respective documents of title claimed by the parties. Reliefs based on or relating to or consequent to title shall be considered afresh on the basis of the finding to be entered into on title. The decree and judgment of the court below will stand modified in terms of the findings entered into in this judgment. In all other respects the impugned judgment will stand confirmed. The finding of the court below that the 1^st plaintiff Association is the educational agency in management of the schools in question is affirmed.

¶208

In O.P. Nos.3285 and 3512 of 2012 which arose from interlocutory proceedings when the present suit was pending before the trial court, as per judgment dated 15.11.2012 this Court had appointed the District Educational Officer, Chavakkad as the

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Ex-officio Manager of the three Schools pending disposal of the suit. The said status quo continues till date. In view of the findings supra, it necessarily follows that the District Educational Officer, Chavakkad shall be relieved of his duties as Manager (earlier appointed as interim measure) and that the Manager elected by the Educational agency can discharge his function.

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The parties shall appear before the I Additional Sub Court on 16.08.2017.

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Sd/-

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V. CHITAMBARESH, JUDGE.

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Sd/- SATHISH NINAN, JUDGE.

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vsv

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/true copy/