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Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 8895 OF 2012

Principal Secretary, Government of Karnataka and Another  … Appellants

Versus

Ragini Narayan and Another …Respondents

J U D G M E N T

Prafulla C. Pant, J.

This appeal is directed against judgment and order dated

24.03.2010,  passed  by  the  High  Court  of  Karnataka  at

Bangalore in R.F.A. No. 788 of 2009 (DEC-INJ), whereby said

Court has dismissed the appeal.  The appeal before the High

Court  had  arisen  out  of  the  decree  passed  by  the  XXVII

Additional  City  Civil  Judge,  Bangalore,  in  O.S.  No.  2680 of

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2000, whereby the suit seeking declaration that the plaintiff is

Donor Trustee, was decreed by the trial court in her favour.   2. Brief facts of the case are that the plaintiff (Respondent

No. 1 herein) Ragini Narayan filed a suit for declaration that

after death of her husband, she is the Donor Trustee of B.M.

Sreenivasaiah Educational  Trust,  Bangalore (for  short  “BMS

Trust”).  It is not disputed that late Shri B.M. Sreenivasaiah, a

philanthropist, started BMS College of Engineering in the year

1946.  After his death it was his son B.S. Narayan, who was

running  the  institution.   In  1957,  the  institution  was

transferred to BMS Trust by B.S. Narayan (since died).  The

then Government of Mysore (now Government of Karnataka)

extended  financial  assistance  to  the  Trust  to  clear  its

encumbrances, and agreed to establish the BMS College for

Women  by  the  Trust.   It  is  stated  that  the  appellant/

Government  of  Karnataka  gave  grant-in-aid  for  the  three

colleges run by the Trust.

3. The plaintiff’s case is that she is legally wedded wife of

B.S. Narayan (the original Donor Trustee) as she got married

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to him on 21.05.1984, after he divorced his first wife, namely,

Smt.  Minnie  Narayan.   It  is  pleaded  that  the  plaintiff

continued to live as his wife till his death on 23.08.1995. It is

further  pleaded  that  vide  Trust  Deed  dated  02.12.1957,

Dharmaprakasha  Rajakaryasakta  B.M.  Sreenivasaiah

Educational  Trust was created by B.S. Narayan, his mother

and  step  mother  by  transferring  properties  worth  Rs.5000

crores.   The Council  of  Trustees  consisted of  five  members

(trustees) with B.S. Narayan as a Donor Trustee.  In terms of

the Trust Deed B.S. Narayan and all his successors had the

right to appoint three of the trustees while the remaining one

trustee was to be appointed/nominated by the Government of

Karnataka (defendant No 2/appellant herein).

4. The Council of Trustees in the presence of the then Chief

Minister, in its meeting dated 12.10.1978 resolved to amend

the Trust Deed allowing B.S. Narayan to nominate any person

as Donor Trustee for life time and also provided for succession

to  the  Donor  Trustee.   The  State  Government  (appellant)

approved  said  amendment  vide  communication  dated

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25.09.1979 and supplementary Trust Deed was executed on

25.06.1981, but the amendment regarding succession to the

Donor Trusteeship was not carried out.

5. Dispute starts from the year 1994.  On 10.12.1994 in

another  meeting  of  Council  of  Trustees,  a  resolution  was

passed  to  amend  the  Trust  Deed  to  give  effect  to  the

succession to Donor Trusteeship, with certain changes from

the  earlier  resolution  mentioned  in  preceding  para.   In  the

light  of  the  amendment  made  in  1994,  a  Deed  dated

30.01.1995 was registered providing that after the life time of

B.S. Narayan, his senior most lineal descendant or a member

of his family, nominated by him or his wife, shall be the Donor

Trustee.   It  is  pleaded  by  the  plaintiff  that  B.S.  Narayan,

exercising powers under clause IV(iv) of the Trust Deed, vide

document dated 16.01.1995, nominated the plaintiff to be the

Donor Trustee in his place with effect from 16.01.1995.  The

plaintiff has further pleaded that B.S. Narayan never revoked

said delegation till his death. The document dated 30.01.1995

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further  provided that  after  death of  B.  S.  Narayan his  wife

shall be the Donor Trustee under the Trust Deed.   

6. Admittedly,  B.S.  Narayan  died  on  23.08.1995  in

Workhardt  Hospital  where he was undergoing treatment  for

cancer of colon.  B.S. Narayan died issueless leaving behind

his  mother  Smt.  Laxmamma  and  the  plaintiff.   Claiming

herself  to  be  the  Donor  Trustee  after  the  death  of  her

husband, the plaintiff wrote letter dated 28.08.1995 to Shri Y.

Ramachandra, Chairman of the Trust.  Prof.  P.V. Bhandari,

who  was  the  Government  nominee/trustee,  forwarded  the

letter  of  the  plaintiff  to  the  Government.   Vide  letter  dated

30.09.1995,  the  plaintiff  sought  cooperation  of  the  State

Government  in  discharging  functions  by  her  as  a  Donor

Trustee.   However,  there  was  no  response  from  the

Government  and  in  the  meanwhile  Y.  Ramachandra,

Chairman of the Trust appears to have written a letter dated

15.09.1995 requesting the State Government to take over the

Trust.   It  appears  that  the  appellants  appointed  M.R.

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Sreenivasa Murthy (respondent No. 2 herein) as Donor Trustee

vide communication dated 07.11.1995.

7. Communication  dated  07.11.1995,  issued  on behalf  of

the appellants appointing Respondent No. 2 as Donor Trustee,

was challenged by the plaintiff Ragini Narayan in Writ Petition

No. 40933 of 1995 which was disposed of by the High Court

leaving the plaintiff to avail the remedy available before the   

Civil  Court,  and  a  Committee  of  Chairman  and  Trustees

appointed by the court was directed to manage the affairs of

the Trust, in the meantime. Consequently the suit was filed.   8. Apart from the appellants, Respondent No. 2 (defendant

No. 3 before the civil court) contested the suit.  He filed his

separate written statement.   The pleas taken by him are in

substance  the  same as  raised by  the  appellants  (defendant

Nos.  1 and 2).   It  is  pleaded by the defendants that  under

proviso  to  clause  VI  (xii)  of  the  Trust  Deed approval  of  the

State Government was necessary for any amendment in the

Trust Deed.  It is further pleaded that as per original clause

(IV)(1)  B.S.  Narayan,  the  designated  original  Donor  Trustee

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was to hold the office during his life time, whereafter his senior

most  lineal  descendants  were to succeed as Donor  Trustee.

And in absence of any lineal descendant trustee, the nominee

of State Government was to act as Donor Trustee.  The case of

the  defendants  is  that  the  State  Government  had  given  its

approval  to  the  amendment  dated 12.10.1978 in respect  of

para IV(iv) of the Trust Deed which was incorporated in the

supplementary  Trust  Deed  dated  25.06.1981.   It  is  further

stated that insofar as proposed amendment to clause (IV)(1) is

concerned, since B.S. Narayan himself withheld nomination of

his first wife Minnie Narayan as Donor Trustee after his death,

as  such,  said  amendment  did  not  form  part  of  the

supplementary Trust Deed dated 25.06.1981.  It is stated on

behalf  of  the  appellants  and  Respondent  No.  2  that  the

Council  of  Trustees had no authority to amend the original

Trust  Deed  without  the  consent  of  the  Government  of

Karnataka.   As  such,  the  amendment  dated  10.12.1994

registered on 30.01.1995 relied on behalf of the plaintiff, being

without the approval of the State Government, is inoperative.

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Even otherwise as per the amendment of 1995, the power to

delegate the powers of Donor Trustee was to be exercised for a

limited period i.e.  during life time of B.S. Narayan, and the

plaintiff  as the wife of B.S. Narayan has no right to continue

as Donor Trustee after the death of her husband.   

9. The trial court, as well as the High Court, has decided

the issue as to the validity of marriage of the plaintiff with B.S.

Narayan in her favour.  Both the courts have also found that

B.S. Narayan had an authority to nominate his wife, and that

the  delegation  of  powers  of  Donor  Trustee  in  favour  of  the

plaintiff suffers from no illegality.  The High Court has upheld

the decree passed by the trial court in favour of the plaintiff.

Hence this appeal through special leave.

10. Before  further  discussion,  we  think  it  necessary  to

reproduce  relevant  paras  from  the  original  Trust  Deed

02.12.1957: -

“IV(i) The management of “THE TRUST” shall vest in “THE COUNCIL OF TRUSTEES” consisting of five  members.   Sri  B.S.  Narayan  “DONOR” hereto during his life time shall be a member of  the council  of  trustees;  and after  him the

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successive  senior  most  lineal  descendant  of the said donor (1)  shall  be one such trustee and shall have the powers and rights of donor “1”  under  these  paras.   If  this  mode  of succession fails all the powers exercisable by the  Donor  (1)  under  terms  of  this  deed, including  powers  of  appointment  of  trustees under  this  deed,  shall  vest  with  the Government of Mysore.”

…. …. …. …. …. …. …

“IV(iv) For the purposes of sub para (i) of clause IV supra  Donor  (1)  shall  have  the  power  of nominating in his place or any person for such period or periods as may be specified or for the life time of such member, to exercise all or any of the powers vested in Donor (1) under this deed as may be delegated and such nominee shall subject to the foregoing be deemed to be donor (1) within the meaning of the Deed.”

…. …. …. …. …. …. …

“VI(xii) Notwithstanding anything contained in these presents  “The  Trustees”  shall  have  power  to alter, amend or to add to any of the clauses of this document consistent with the objects and purposes of “The Trust”.  “The Trustees” shall have  power  to  negotiate,  conclude  and effectuate  such agreements  with  Government State  or  Union,  local  bodies  or  other authorities or bodies for purposes of obtaining financial and/or technical aid in any form as they  deem  fit  on  such  conditions  as  may appear  fit  to  them,  for  furtherance  of  the purposes  of  the  institutions  created  under

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“The  Trust”  and for  that  purpose  shall  have power to include or to co-opt further trustee or trustees;  to  cede or  curtail  or  transfer  all  or any such power to any government of body, as may be found fit and proper and to effect such alterations  in  the  clauses  of  this  deed,  not inconsistent with the objects and purposes of “The  Trust”  as  in  their  opinion  may  appear necessary and desirable.

Provided  that  any  resolution  of  “The Trustees” touching the alteration of this deed or amending of any of its clauses shall not be operative unless concurred to by donor “1” and approved by the Government of Mysore.”

                                        (emphasis supplied)

11.  Now, we come to the relevant amendments in the Trust

Deed, including the one dated 10.12.1994 relied by the plaintiff

but  disputed by  the  appellants  and Respondent  No.  2.   The

table showing clause (IV) (i) as it existed in original deed, the

one after 1978 amendment, and disputed amendment of 1994

(registered on 30.01.1995) are shown below:

ORIGINAL DEED DATED 2/12/57

AMENDMENTS APPROVED  IN 1978

AMENDMENT REGISTERED  ON 30/01/1995

The  management  of “THE  TRUST”  shall vest in the “COUNCIL OF  TRUSTEES” consisting  of  five

The management of “THE TRUST” shall vest  in  the “COUNCIL  of TRUSTEES”

The  management  of “THE  TRUST”  shall vest  in  the  “COUNCIL of  TRUSTEES” consisting  of  five

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members.   Sri  B.S. Narayan  “DONOR” hereto during his life time  shall  be  a member  of  the Council  of  Trustees; and  after  him  the successive senior-most  lineal descendant  of  the said  donor  (1)  shall be  one  such  trustee and  shall  have  the powers  and rights  of donor (1) under these presents.   If  this mode  of  succession fails  all  the  powers exercisable  by  the Donor  (1)  under terms  of  this  deed, including  powers  of appointment  of trustees  under  this deed,  shall  vest  with the  Government  of Mysore.

consisting  of  five members.  Sri B.S. Narayan  “DONOR” hereto  during  his life time shall be a member  of  the Council of Trustees and  after  him,  his wife  Minnie Narayan  and there-after  the successive senior-most  lineal descendant  of  the said donor (1) or a member  of  the family  nominated by donor (1)  or his wife shall  be  one such  trustee  and shall  have  the powers  and  rights of  donor  (1)  under these  presents.   If this  mode  of succession  fails  all the  powers exercisable  by  the Donor  (1)  under terms of this deed, including powers of appointment  of trustees under this deed,  shall  vest with  the Government  of Mysore.

members.   Sri  B.S. Narayan  “DONOR” hereto  during  his  life time  shall  be  a member and thereafter the  successive senior-most  lineal descendant of the said donor (1) or a member of  the  family nominated by donor (1) or his wife shall be one such trustee and shall have  the  powers  and rights  of  donor  (1) under  these  presents. If  this  mode  of succession fails all the powers  exercisable  by the  Donor  (1)  under terms  of  deed, including  powers  of appointment  of trustees  under  this deed,  shall  vest  with the  Government  of Karnataka.

            (emphasis supplied)

12. It  is  clear  from the  record that  in  the  year  1957 B.S.

Narayan  was  a  bachelor.   Later  he  got  married  to  Minnie

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Narayan before 1978 amendment, and divorced her in 1982.

There  is  concurrent  finding  of  fact  that  B.S.  Narayan  got

remarried  in  1984  to  plaintiff  Ragini  Narayan.   It  is  also

relevant  to  mention  here,  that  there  is  no  dispute  that

amendments mooted by B.S. Narayan in 1978 were approved

by the State Government (appellant No.2) vide communication

dated  25.09.1979.   It  is  argued  by  Shri  K.  K.  Venugopal,

Senior  Advocate  appearing  on  behalf  of  the  appellants  and

Shri  S.  Ganesh,  Senior  Advocate  for  respondent  no.2  that

since there was no approval of the State Government to the

amendment of 1994, as such it cannot be said that such an

amendment was operative,  or that B.S. Narayan could have

acted under the amended para (IV)(i) of the Deed to nominate

the plaintiff (Ragini Narayan) as a Donor Trustee.  It is further

submitted that without the aid of Resolution dated 10.12.1994

read with delegation of power made by B.S. Narayan in favour

of the plaintiff, she has no entitlement to discharge functions

of  the  Donor  Trustee.  It  is  contended  that  the  Deed  of

Nomination  dated  16.01.1995  in  favour  of  Ragini  Narayan,

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allegedly executed by B.S. Narayan is not a valid document.  It

is  pointed out  that  the  amended deed based on Resolution

dated 10.12.1994 was not registered, by the date 16.01.1995

as  the  registration  is  said  to  have  been  done  only  on

30.01.1995.  As such, delegation of power in favour of plaintiff

on 16.01.1995 is not valid. It is vehemently argued that since

the amendment registered on 30.01.1995 was a non-starter as

such the same was non-effective.  Ragini Narayan, after the

death of B.S. Narayan could not have nominated herself as a

Donor Trustee.

13. In reply  to  above,  Shri  C.A.  Sundaram,  learned senior

counsel appearing for the plaintiff – Respondent no.1, pointed

out that under Section 47 of the Registration Act, 1908, the

document registered on a subsequent date relates to the date

of  execution.   It  is further submitted that  since the date of

Resolution was 10.12.1994, as such there was no impediment

on the part of B.S. Narayan to exercise his powers under the

amended Para IV(i).

14.   Section 47 of Registration Act, 1908 reads as under:

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“47.  Time  from  which  registered  document operates. –  A registered document shall  operate from the time which it would have commenced to operate  if  no  registration  thereof  had  been required  or  made,  and not  from the  time of  its registration”

      In view of the above provision of law, we are in agreement

with  the  submission of  learned counsel  for  the  Respondent

no.1  that  the  document  registered  on  a  subsequent  date,

operates  from  the  date  of  execution,  not  from  the  date  of

registration.

15. However, what is more required to be examined in the

present case is as to whether Resolution for amendment dated

10.12.1994 had its approval from the State Government or not.

We have already quoted proviso to Para VI (xii) of the original

Trust Deed which requires that any alteration of the deed or

amendment  therein  would  require  concurrence  of  Donor

Trustee and that of the State Government.

16. Though on behalf of the appellants and the Respondent

no.2, it is contended that the State Government had not given

any approval to the amendment relied upon on behalf of the

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plaintiff,  but  certain  documents on record clearly  show that

there was approval  of  the State Government to the disputed

amendment of 1994.  One of such documents (dated13.8.1995)

is  Annexure  A-7  filed  by  the  Respondent  No.2  with  the

additional  documents,  which  is  copy  of  the  ‘Deed  of

Appointment’  of  the  Government  of  Karnataka  as  successor

Donor Trustee of executant B.S. Narayan.  In our opinion, the

appellants cannot approbate and reprobate at the same time.

On one  hand they  rely  on this  document  to  nominate  M.R.

Srinivasa Murthy, and appoint him as Donor Trustee, and on

the other hand, they are not ready to accept the approval of

State  Government  to  the  Amendment  Deed  registered  on

30.01.1995 on the basis of which the executant has exercised

the  powers  in  nominating  the  Donor  Trustee.   Para  2  of

Annexure  A-7  i.e.  ‘Deed  of  Appointment’  dated  13.08.1995

executed by B.S. Narayan reads as under:

“…….WHEREAS  the  above  executant  is  the Donor  Trustee  of  a  Registered  Educational Trust,  created  under  document  dated 02.12.1957  and  registered  as  Document No.2944/57-58 in Book I, Volume 48, pages 10

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to  35,  registered  in  the  Office  of  the Sub-Registrar,  Bangalore  City  South,  and WHEREAS  the  above  document  created  the B.M.S. Educational Trust, which document was subsequently  amended  once  by  registered document  No.  498/81-82  dated  25.06.1981 and  further  amended  by  a  second  document dated 30.01.1995 and registered as document No.531/94-95,  after  following  the  formalities required  in  regard  to  amendment,  which included the approval of the Government of the State of Karnataka and ……….”

(emphasis supplied)

17. Another important document which throws light on this

point is Annexure P-7 dated 7.11.1995 which is copy of the

letter issued by the Government of Karnataka to the Member

Secretary  of  B.M.S.  Trust,  Bangalore  appointing  M.R.

Srinivasa Murthy, IAS, as Donor Trustee.  Said document is

reproduced below: “GOVERNMENT OF KARNATAKA

No.ED108TEC95 Karnataka Government Secretariat, Sachivalaya-II,

         Bangalore, Dated: November 07, 1995

From: The Principal Secretary to Govt. of Karnataka, Education Department, Bangalore.

To  The Member Secretary, B.M. Srinivasaiah Educational Trust,

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Bangalore. Sir

Sub:  Acceptance  of  appointment  as  a  Donor Trustee  by  the  Government  of  Karnataka  for  B.M. Srinivasaiah Educational Trust.

Ref:  1.  Letter from Sri  Y.  Ramachandra,  Chairman of the Trust, dtd.15.09.1995

     2. Deed of Appointment dtd. 13.08.95 executed by the   late Donor Trustee Sri B.S. Narayan.

….

With  reference  to  the  above  mentioned Communication/documents,  the  Government  of Karnataka  has  accepted  the  nomination  as  the Donor-Trustee of  B.M. Srinivasaiah Educational  Trust and  is  assuming  the  role  of  Donor-Trustee  with immediate effect.  Sri M.R. Sreenivasa Murthy, IAS, is hereby  appointed  to  function  as  Donor-Trustee  on behalf of the Government of Karnataka with immediate effect.

Please extend all  co-operation to him and assist him in the discharge of his functions.

Yours faithfully, Sd/-

(U.P. SHARMA) PRINCIPAL SECRETARY TO GOVERNMENT                      EDUCATION DEPARTMENT.”

18. From the above mentioned letter, it is clear that Deed of

Appointment  dated  13.08.1995  was  referred  by  the  State

Government, and it cannot be said that the State Government

had  not  approved  the  Resolution  dated  10.12.1994  on  the

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basis  of  which  Deed  of  Amendment  was  registered  on

30.01.1995. That being so, now we have to examine whether it

is the plaintiff  who was validly nominated Donor Trustee or

the  State  Government?  From the  para (IV)(i)  of  the  original

Trust Deed dated 02.12.1957, it is clear that B.S. Narayan was

to continue as Donor Trustee during his life time whereafter

he was to be succeeded by his lineal descendant, and if the

mode of succession fails then, power of the appointment of the

Trust  Deed  was  to  vest  with  the  State  Government.

Amendment  of  1978  as  shown in  the  chart  quoted  earlier,

makes it clear that name of Minnie Narayan was added in para

(IV)(i)  as  nominee  to  succeed  from  B.S.  Narayan,  and

thereafter  senior  most  of  the  lineal  descendant,  and  if  the

mode of succession fail, the powers were to be exercised by the

State Government.  It appears that after Minnie Narayan was

divorced by B.S. Narayan, and he (B.S. Narayan) got married

to  Ragini  Narayan  (plaintiff)  whereafter  further  amendment

was  proposed  and  passed  through  Resolution  dated

10.12.1994  (as  mentioned  in  amended  deed  registered  on

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30.01.1995)  and  by  this  amendment  i.e.  of  1994  name  of

Minnie Narayan was deleted, and it was mentioned that after

the life time of B.S. Narayan, his senior most lineal descendant

or a member of his family or his wife was to succeed, and if

mode of succession fails, then powers of Donor Trustee were to

be exercised by the State Government.

19. There is concurrent finding of  fact of  the courts below

that  Ragini  Narayan  was  the  wife  of  B.S.  Narayan  Donor

Trustee, at the time of his death, as such it cannot be said

that  mode  of  succession  mentioned  in  para  (IV)(i)  failed.

Whether it is amendment of 1978 or 1995 the expression "or

his wife” is there. In our opinion the words-‘or his wife’ in the

amendment  of  1978  to  which  the  appellants  admittedly

approved refer to wife of the Donor Trustee.  Same expression

is retained in the 30.01.1995 amendment. The amendment of

1978 was,  admittedly,  approved by the  State  of  Karnataka.

Insofar  as  the  amendment  of  1994  is  concerned,  we  have

already  held  that  by  virtue  of  Ex.A-7  dated  13.8.1995,  the

recital contained therein and in view of the letter of the State

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Government  dated  7.11.1995  the  consent  of  the  State

Government  to  the  amendment  of  1994  can  be  readily

inferred. Therefore, we do not find any error in the impugned

order passed by the High Court.  However, we clarify that any

nominee appointed by the State Government as Trustee will be

entitled  to  function  as  ordinary  trustee  in  the  Council  of

Trustees as provided in the Trust Deed but not as the Donor

Trustee till the succession as mentioned in the Trust Deed (as

amended) fails.

20. For  the  reasons  as  discussed  above,  the  appeal  is

dismissed.

……………….....…………J. [Ranjan Gogoi]

.……………….……………J. New Delhi; [Prafulla C. Pant] September 20,   2016.