Companies Act Case Law Illachi Devi (D) By Lrs. And Ors Vs Jain Society Protection Of Orphans India And Ors

CASE NO.:
Appeal (civil) 8080 of 2003

PETITIONER:
ILLACHI DEVI (D) BY LRS. AND ORS.

RESPONDENT:
JAIN SOCIETY, PROTECTION OF ORPHANS INDIA AND ORS.

DATE OF JUDGMENT: 26/09/2003

BENCH:
V.N. KHARE CJ & S.B. SINHA

JUDGMENT:
JUDGMENT

2003 Supp(4) SCR 62

The Judgment of the Court was delivered by

V.N. KHARE, CJ. : Leave granted.

This appeal is directed against the judgment and order dated 17th August
2001 of the High Court of Delhi, which raises a question, whether a Society
registered under the Societies Registration Act, 1860 is entitled to obtain
Letter of Administration under Section 236 of the Indian Succession Act (in
short “the Act”)?

The facts giving rise to this appeal are these :

One Ratan Lal executed a Will on 15.10.1977 bequeathing a part of his
estate to Jain Bal Ashram which is run by the Jain Society (hereinafter
referred to as “the Society”) formed for protection of orphans in India.
The Society is registered under the Societies Registration Act, 1860. On
4th March, 1978, Ratan Lal, the testator died. On his demise, the Society
submitted an application before the Court for grant of Letter of
Administration in pursuance of Will executed by late Ratan Lal, under
Section 276 of the Act. The said petition was contested by the appellant
and on her death by her legal representatives, on the ground that the
petition filed by the Respondent-Society is not maintainable in view of
Section 236 of the Act. The High Court being of the view that it is
permissbile under Section 236 of the Act to grant Letter of Administration
in favour of the Society, rejected the objection of the appellant and, it
is in this way, the appellants are before us by means of a special leave
petition.

Before we proceed on the merits and take up the question for answer it
would be expedient to set out the relevant provisions of the Act.

Section 218 of the Act provides that to whom letter of administration be
granted where the deceased is a Hindu, Mohammadan, Sikh, Jaina or exempted
persons. Section 218 of the Act runs as under :

“(1) If the deceased has died intestate and was a Hindu, Muhammadan,
Buddhist, Sikh or Jaina or an exempted person, administration of his estate
may be granted to any person who, according to the rules for the
distribution of the estate applicable in the case of such deceased, would
be entitled to the whole or any part of such deceased’s estate.

(2) When several such persons apply for such administration, it shall be
in the discretion of the Court to grant it to any one or more of them.

(3) When no such person applies, it may be granted to a creditor of the
deceased.”

Section 223 of the Act provides that to whom probate cannot be granted.
Section 223 of the Act runs as under :

“223. Persons to whom probate cannot be granted- Probate cannot be granted
to any person who is a minor or is of unsound mind nor to any association
of individuals unless it is a company which satisfies the conditions
prescribed by rules to be made by notification in the Official Gazette, by
the State Government, in this behalf.”

Section 236 provides that to whom letter of administration cannot be
granted. The said Section runs as under :

“236. To whom administration may not be granted.- Letters of administration
cannot be granted to any person who is a minor or is of unsound mind, nor
to any association of individuals unless it is a company which satisfies
the conditions prescribed by rules to be made by notification in the
Official Gazette, by the State Government is this behalf.”

Section 236, as originally enacted, prohibited grant of letters of
administration to any person who was a minor or of unsound mind. By
amending Act of 1983, the following provision was inserted in Section 236 :

“…..nor to any association of individuals unsess it is a company which
satisfies the conditions prescribed by rules to be made by notification in
the Official Gazette,…..”

A perusal of sub-section (2) of Section 218 shows that it grants to the
Court ample discretion in the matter of grant of Letter Administration
where a testator dies intestate. The object behind granting discretion to
the Court is that where a person dies intestate, the person in whose favour
the Letter of Administration is granted, is required to carry out certain
functions and duties being responsible to the Court, whereas Section 223
and 236, on the other hand, provide for disqualification. The Letter of
Administration or probate can only be granted to those who are named in
those Sections; the object being that the duties and functions of an
executor in whose favour Letter of Administration is granted, is required
to carry out the direction(s) contained in the Will faithfully, diligently
and effectively. The executor can be discharged only as and when such
directions given in the Will, are complied with or the desire of testator,
as reflected in the Will, is fulfilled. The legislature, in its wisdom, has
chosen to disqualify not only a minor or a person of unsound mind, but also
an association of indiviudals, for carrying out the wishes and directions
of the testator. The only exception which has been made in the matter of
grant of probate or Letter of Administration is a company, which satisfies
the conditions prescribed in the Rules and not otherwise.

The Governor-General in Council made Rules which were published in the
Gazette of India on 17th January, 1933, Part-I, Page 40, which run as
follows :

“(1) In these rules –

(a) ‘Share capital’ includes stock; and

(b) ‘Trust business’ means the business of acting as trustee under wills
and settlements and as executor and administrator.

(2) The conditions to be satisfied by a company in order to render it
eligible for the grant of probate or letters of administration under the
Indian Succession Act, 1925 shall be the following, namely :

(1) The Company shall be either –

(a) a company formed and registered under the Indian Companies Act 1913,
or under the Indian Companies Act 1866, or under any Act or Acts repealed
thereby, or under the Indian Companies Act 1882; or

(b) a company constituted under the law of the United Kingdom of Great
Britain and Northern Ireland or any part thereof, and having a place of
business in British India.

(2) The company shall be a company empowered by its constitution to
undertake trust business.

(3) The company shall have a share capital for the time being
subscribed of not less than –

(a) Rs. 10 lakhs in the case of a company of the description specified
in sub-clause (a) of clause (1), and

(b) Pound 100,000 in the case of a company of the description
specified in sub-clause (b) of clause (1) of which at least one-half shall
have been paid up in cash.

Provided that the Governor-General in Council may exempt any company from
the operation of this clause.”

A society is an association of persons. It may or may not be registered
under the Societies Registration Act. Since the aforementioned provisions
were inserted in Sections 223 and 236 of the Act, the Courts have held that
no Administration can be granted in favour of a society, although a Society
could be a beneficiary under a Will executed by testator.

The object and purpose of the said provisions is to enable the Court to
give full effect to be given to the Will of the Testator, such that the
administrator would avoid the occurrence of any personal considerations in
the matter of administration and would perform his various duties and
functions with all efficiency, integrity and honesty. The nature of this
tremendous responsibility may be seen from the fact that administrator is
entrusted to act in a fiduciary capacity, and not liable to be discharged
until the testament is fulfilled in its entirety.

It was the interests of the testator that the legislature had in mind when
it enacted the disqualifying provisions contained in Section 223 and 236 of
the Act. Undoubtedly, a minor or a person of unsound mind would not be in a
position to discharge efficaciously the duties required of an administrator
of the estate. A society is an association of persons and it may be
registered under the Societies Registration Act or unregistered. Such
bodies (association of persons too) would suffer from certain disabilities
as there would then possibly be competing and conflicting voices with no
single line of command for carrying out the wishes of the testator.

In Mohashaya Krishna v. Mt. Maya Devi and Others, AIR 35 (1948) Lahore 54
it has been categorically held that the Arya Pritinidhi Sabha, Punjab being
not a company wihin the meaning of Sections 223 and 236 of the said Act was
not entitled to grant of Administration, holding :

“A society registered under the provisions of Act 21 of 1860 does not cease
to be an association of individuals by reason of such registration.
Registration under the aforesaid Act only confers on it certain privileges
which are not enjoyed by other associations of individuals. For example,
such a society may sue or be sued in the name of the president, chairman or
principal secretary or trustees as may be determined by the rules and
regulations of the society.”

In Laxman Kumar v. Mohammed Moqbul AH, (1974) 2 CWR 1112 it has been held
that a mosque committee, being an association of individuals is not
entitled to probate or Letters of Administration.

Allahabad High Court in Benaras Hindu University v. Gauri Dutt Joshi, AIR
(1950) Allahabad 196 had, however, struck a discordant note. The Court
proceeded on the premise that as Benaras Hindu University would fall within
the definition of “person” as contained in the General Clauses Act a Letter
of Administration can be granted in its favour holding :

“There can be no doubt that the Benaras Hindu University is, therefore, a
corporation. It is a collection of individuals united into one body under a
special denomination, having perpetual succession under an artificial form,
and vested by the policy of the law with the capacity of acting in several
respects as an individual. In law the individual corporators, or members,
of which it is composed are something wholly different from the corporation
itself. It is a legal persona distinct and separate from the individual
members of the corporation. It can hold property enter into obligations,
can sue and be sued, and has the rights obligations conferred on it by
statute. It cannot be said, therefore, that the Hindu University is merely
an association of individuals. An association in the United States is a
body of persons organized, for the prosection of some purpose, without a
charter, but having the general form and mode of procedure of a
corporation, but is not, in fact, a corporation. The word “association”
implies the result of an agreement giving rise to rights and obligations
one against the other.”

The Bench referred to an English decision in Smith v. Anderson, (1880) 15
Ch. Div. 247 at p. 273 to hold that Benaras Hindu University is not an
association of individuals in the sense defined therein.

A learned Single Judge of the Delhi High Court followed the said decision
in Inder Chand Nayyar v. Sarvadeshik Arya Pratinidhi Sabha, AIR (1977)
Delhi 34 in the following terms :

“I have considered the matter and am in agreement with the view of the High
Court of Allahabad in Ganga Sahai ‘s case AIR (1950) All 480. This was a
case of Arya Prati Nidhi Sabha and it was held that letters of
administration could be granted to such a body which was registered under
the Societies Registration Act. With greatest respect, I am not able to
agree with the view taken by the High Court of Lahore in Mahashaya
Krishna’s case AIR (1948) Lah 54. As a last resort it will still be open to
the contesting respondent to obtain letters of administration under Section
232 of the Act in the name of its President through whom the society is
entitled to sue and this will meet the technical objection raised by the
appellant. I, therefore, repeal the contention of the appellant.”

The High Court in its impugned judgment proceeded on the basis that
although society is not a corporation but it is also not a mere association
of individuals.

The High Court has sustained its judgment on the ground that Sections 223
and 236 of the Act disqualify only those persons who suffer from legal
incapacity of suing or being sued. According to the High Court, since the
Society can sue as well as be sued in representative capacity, it can be
entrusted with the responsibility of carrying out the wishes of the
testator. The High Court was of the further view that the purpose of a Will
in favour of a voluntary organization or association, may be frustrated
unless it is held that grant of Letter of Administration to the Society
through a person nominated by it would be valid. We find ourselves unable
to countenance the aforesaid view of the High Court. The mere fact of
registration of a Society under the Societies Registration Act will not
make the said Society distinct from association of persons. Sections 223
and 236 of the Act in very categorical term provide that association of
persons; be it a society, a partnership or other forms of associations,
Letter of Administration can be granted only to a company fulfilling the
conditions laid down under the Rules. The Rules have been framed by the
Governor-General in Council, which, after the enforcement of Constitution
of India, would be a law within the meaning of Article 372 of the
Constitution of India. Sections 223 and 236 of the Act would be interpreted
in the light of the Rules framed in terms thereof. A society registered
under the Societies Registration Act is not a ‘company’ within the meaning
of ‘company’, as provided in the Act and the Rules. In terms of Section 223
and 236, a ‘company’ must be a ‘company’ registered under the Companies
Act. We are, therefore, of the considered opinion that neither the
provisions of the Act nor the Rules framed thereunder contemplate that the
Societies registered under the Societies Registration Act would qualify to
be considered as a company for the purpose of Sections 223 and 236.

A Society registered under the Societies Registration Act is not a body-
corporate as is the case in respect of a company registered under the
Companies Act. In the view of the matter, a Society registered under the
Societies Registration Act is not a juristic person. The law for the
purpose of grant of a probate or Letter of Administration recognises only a
juristic person and not mere conglomeration of persons or a body which does
not have any statutory recognition as a juristic person.

It is well known that there exists certain salient differences between a
society registered under the Societies Registration Act, on the one hand,
and a company corporate, on the other, principal amongst which is that a
company is a juristic person by virtue of being a body corporate, whereas
the society, even when it is registered, is not possessed of these
characteristics. Moreover, a society whether registered or unregistered,
may not be prosecuted in criminal court, nor is it capable of ownership of
any property or of suing or being sued in its own name.

Although admittedly, a registered society is endowed with an existence
separate from that of its members for certain purposes, that is not to say
that it is a legal person for the purposes of Sections 223 and 236 of the
Act. Whereas a company can be regarded as having a complete legal
personality, the same is not possible for a society, whose existence is
closely connected, and even contingent, upon the persons who originally
formed it. Inasmuch as a company enjoys an identity distinct from its
original shareholders, whereas the society is undistinguishable, in some
aspects, from its own members, that would qualify as a material
distinction, which prevents societies from obtaining letters of
administration.

The Patna High Court in K.C. Thomas v. R.L. Gadeock and Another, AIR (1970)
Patna 163 held that a society registered under the Act enjoys the status of
legal entity apart from the members constitution and is capable of suing of
being sued. The said decision is not correct.

Sections 5 & 6 of the said Act read thus :

“5. Property of Society how vested – The property, moveable and immoveable,
belonging to a Society registered under this Act, if not vested in
trustees, shall be deemed to be vested for the time being in the governing
body of such Society, and in all proceedings, civil and criminal, may be
described as the property of the governing body of such Society by their
proper title.

6. Suits by and against societies – Every society registered under this Act
may sue or be sued in the name of the president, chairman, or principal
secretary, or trustees, as shall be determined by the rules and regulations
of the society, and, in default of such determination, in the name of such
person as shall be appointed by the governing body for the occasion :

Provided that it shall be competent for any person having a claim or demand
against the society, to sue the president or chairman, or principal
secretary or the trustees thereof, if on application to the governing body
some other officer or person be not nominated to be the defendant.”

Vesting of property, therefore, does not take place in the Society.
Similarly, the society cannot sue or be sued. It must sue or be sued
through a person nominated in that behalf.

By way of an example Rule Section 7 of the A.P. (Telangana Area) Public
Societies Registration Act, 1350 is reproduced hereinbelow :

“Suits by and against Society – Any such registered Society may sue or be
sued in the name of the chairman or secretary or trustees, as shall be
determined by the rules of the Society, and if there are no rules in this
behalf, in the name of such person as shall be nominated by the managing
committee for this purpose :

Provided that when a suit is instituted against such Society, the plaintiff
shall apply to the managing committee of the Society to nominate any person
to be made the defendant, and if the managing committee fails to nominate
any person within a month or if, in the circumstances, the matter cannot be
deferred so long, the plaintiff may sue the Society’s chairman or secretary
or trustees.”

Section 15 of the Karnataka Societies Registration Act, 1960 provides :

“Suits by and against Society – Every Society registered under this Act may
sue or be sued in the name of the president, chairman, or principal
secretary or the trustees as shall be determined by the rules and
regulations of the Society, and, in default of such determination, in the
name of such person as shall be appointed by the governing body for the
occasion :

Provided that, it shall be competent for any person having a claim or
demand against the Society, to sue the president or chairman, or principal
secretary or the trustees thereof, if on application to the governing body,
some officer or person be bot nominated to be the defendant.”

Section 19 of the West Bengal Societies Registration Act, 1961 provides :

“Suits and proceedings by and against a Society. – (1) Every Society may
sue or may be sued in the name of the President, the Secretary, or any
office-bearer authorised by the governing body in this behalf.

(2) No suit or proceeding shall abate by reason of any vacancy or charge
in the holder of the office of the President, the Secretary or any office-
bearer authorised under sub-section (1).

(3) Every decree or order against a Society in any suit or proceeding
shall be executable against the property of the Society and not against the
person or the property of the President, the Secretary or any office
bearer.

(4) Nothing in sub-section (3) shall exempt the President the Secretary or
office-bearer of a Society from any criminal liability under this Act or
entitle him to claim any contribution from the property of the Society in
respect of any fine paid by him on conviction by a Criminal Court.”

Similar is the position in the rules framed by some other States.

A bare perusal thereof would show that a society registered under the
Societies Registration Act as contra-distinguished from a company
registered under the Company Act cannot sue in its own name. It is to be
sued in the name of the president, chairman, or principal secretary or
trustees as shall be determined by the rules and regulations of the society
or in the name of such person as shall be appointed by the Government Body
for the occasion in default of such determination. It is, therefore, not
correct to contend that it is capable of suing or being sued in its own
name.

In Board of Trustees, Ayurvedic and Unani Tibia College, Delhi v. State of
Delhi (Now Delhi Administration and Another, AIR (1962) SC 458, this Court
clearly held that a society registered under the Societies Registration Act
is not a corporation holding:

 

“There is authority of long standing for saying that the essence of a
corporation consists in (1) lawful authority of incorporation, (2) the
persons to be incorporated, (3) a name by which the persons are
incorporated, (4) a place, and (5) words sufficient in law to show
incorporation. No particular words are necessary for the creation of a
corporation; any expression showing an intention to incorporate will be
sufficient.”

This Court in the aforementioned case noticed the provisions of the
Societies Registration Act and rejected the contention that a society would
be a corporation and, thus, a body-corporate in the following terms :

“We have therefore, come to the conclusion that the provisions aforesaid do
not establish the main essential characteristic of a corporation aggregate,
namely, that of an intention to incorporate the society. We may further
observe that the scheme and provisions of the Societies Registration Act,
1860 are very similar to those of the Friendly Societies Act, 1896 (59 and
60 Vict. c. 25), as amended in certain respects by subsequent enactments.
It is appropriate to quote here what Dennis Lloyd has said in his ‘Law
relating to Unincorporated Associations’ (1938 edn.) at page 59 in respect
of the provisions of the Friendly Societies Act, 1896 as modified by
subsequent enactments. He has said :

“The modern legislation still maintains the policy of the older Acts in
withholding corporate status from friendly societies. Registration does not
result in incorporation, but merely entitles the society so registered to
enjoy the privileges conferred by the Act. These privileges are of
considerable importance and certain of them go a long way towards giving
registered societies …. a status in many respects analogous to a
corporation strictly so-called, but without being technically incorporated.
Thus something in the nature of perpetual succession is conceded by the
provision that the society’s property is to vest in the trustees for the
time being of the society for the use and benefit of the society and its
members and of all persons claiming through the members according to the
society’s rules, and further (and this is the most noteworthy provision)
that the property shall pass to succeeding trustees without assignment or
transfer. In the same way, though the society, being unincorporated, is
unable to sue and be sued in its own name, it is given the statutory
privilege of suing and being sued in the name of its trustees.”

We think that these observations made with regard to similar provisions of
the Friendly Societies Act, correctly and succinctly summarise the legal
position in respect of the several provisions of the Societies Registration
Act, 1860. Those provisions undoubtedly give certain privileges to a
society registered under that Act and the privileges are of considerable
importance and some of those privileges are analogous to the privileges
enjoyed by a corporation, but there is really no incorporation in the sense
in which that word is legally understood.”

It is a well-known principle of construction of statutes that all words
employed therein must be given their full meaning unless the same results
in absurdity. In Gurudevdatta VKSSS Maryadit v. State of Maharashtra,
[2001] 4 SCC 534, it has been held :

“Further we wish to clarify that it is a cardinal principle of
interpretation of statute that the words of a statute must be understood in
their natural, ordinary or popular sense and construed according to their
grammatical meaning, unless such construction leads to some absurdity or
unless there is something in the context or in the object of the statute to
suggest to the contrary. The golden rule is that the words of a statute
must prima facie be given their ordinary meaning. It is yet another rule of
construction that when the words of the statute are clear, plain and
unambiguous, then the courts are bound to give effect to that meaning,
irrespective of the consequences. It is said that the words themselves best
declare the intention of the law-giver.”

In Sutters v. Briggs, (1992) 1 Appeal Cases 1, the Privy Council held :

“There is indeed no reason for limiting the natural and ordinary meaning of
the words used. The term “holders or indorsees” means any holder and any
indorsee, whether the holder be the original payee or a mere agent for him,
and the rights of the drawer must be construed accordingly. The
circumstance that the law apart from the section in question was repealed
in 1845, without any repeal of the section itself, may lead to anomalies,
but cannot have weight in construing the section.”

In Dental Council of India and Another v. Hariprakash and Others. [2001] 8
SCC 61, it was held :

“The intention of the Legislature is primarily to be gathered from the
language used in the statute, thus paying attention to what has been said
as also to what has not been said. When the words used are not ambiguous,
literal meaning has to be applied, which is the golden rule of
interpretation.”

We are further constrained to state that reliance upon the law of England
is misplaced, since in that country, a probate may lawfully be granted to a
company or to an association of persons, without the imposition of any
condition. The application of British law, to Sections 223 and 236 of the
Act, is therefore uncalled for. While it is true that a society registered
under the Societies Registration Act does not suffer technically from all
of the legal disabilities as the other prohibited classes of persons, as
stipulated by Sections 223 and 226 of the Act, such as minors and persons
of unsound mind but that by itself would not lead one to the conclusion
that such a society would be a juristic person. Even assuming that
registered societies could sue in their own name, that would not be enough
to satisfy the requirement of having a complete and unassailable legal
identity. By way of illustration, a Hindu Undivided Family, a partnership
firm, or even a sole proprietary concern can sue or be sued in its own
name, by virtue of the provisions contained in the Code of Civil Procedure,
1908. Nonetheless, that of its own accord, would not sufficiently establish
that such entities have cured themselves of all the legal disabilities
which bring them within the express prohibitions imposed by other satutes.

Section 2(7) of the Companies Act states :

“2(7) “body corporate” or “corporation” includes a company incorporated
outside India but does not include –

(a) a corporation sole;

(b) a cooperative society registered under any law relating to
cooperative societies; and

(c) any other both corporate (not being a company as defined in this
Act) which the Central Government may, by notification in the Official
Gazette, specify in this behalf.”

We have delineated above the requisite fiduciary character of an
administrator of the estate of the deceased, who must be accountable not
only to the directions of the testator. as expressed in the testament, but
also to the interests of the beneficiaries and the Court. The legislature
has, in its wisdom, chosen to exclude unincorporated associations of
persons from the purview of eligible grantees of letters of administration;
it is not, then, for the Court to legislate judicially by turning the plain
meanings of the povisions on their head. Interpretation must remain
interpretation, and not descend into interpolation.

It is well settled principles of law that a plain meaning must be
attributed to the Statute. Also, a statute must be construed according to
the intention of the legislature. The golden rule of interpretation of a
statute is that it has to be given its literal and natural meaning. The
intention of the legislature must be found out from the language employed
in the statute itself. The question is not what is supposed to have been
intended but what has been said. (See Dayal Singh v. Union of India, [2003]
2 SCC 593.

In Padma Sundara Rao (Dead) and Others v. State of T.N. and Others, [2002]
3 SCC 533, it was held :

“The rival pleas regarding rewriting of statute and casus omissus need
careful consideration. It is well-settled pinciple in law that the court
cannot read anything into a statutory provision which is plain and
unambiguous. A statute is an edict of the legislature. The langauge
employed in a statute is the determinative factor of legislative intent.
The first and primary rule of construction is that the intention of the
legislation must be found in the words used by the legislature itself. The
question is not what may be supposed and has been intended but what has
been said. “Statutes should be construed, not as theorems of Euclid”, Judge
Learned Hand side, “but words must be construed with some imagination of
the purposes which lie behind them”. (Lenigh Valley Coal Co. v. Yensavage,
(218 FR 547) The view was reiterated in Union of India v. filip Tiago De
Gama of Vedem Vasco De Gama, AIR (1990) SC 981 : [1990] 1 SCC 277.”

This Court again in Harbhajan Singh v. Press Council of India and Others,
[2002] 3 SCC 722 stated the law thus :

“Clearly, the language of sub-section (7) of Section 6 abovesaid, is plain
and simple. There are two manners of reading the provision. Read
positively, it confers a right on a retiring member to seek renomination.
Read in a negative manner, the provision speaks of a retiring member not
being eligible for renomination for more than one term. The spell of
ineligibility is cast on “renomination” of a member who is “retiring”. The
event determinative of eligibility or ineligibility is “renomination”, and
the person, by reference to whom it is to be read, is “a retiring member”.
“Retiring member” is to be read in contradistinction with a member/person
retired sometime in the past, and so, would be called a retired or former
member. “Re” means again, and is freely used as a prefix. It gives colour
of “again” to the verb with which it is placed. “Renomination” is an act or
process of being nominated again. Any person who had held office of member
sometime in the past, if being nominated now, cannot be described as being
“again nominated”. It is only a member just retiring who can be called
“being again nominated” or “re-nominated”. No other meaning can be assigned
except by doing violence to the language employed. The legislature does not
waste its words. Ordinary, grammatical and full meaning is to be assigned
to the words used while interpreting a provision to honour the rule –
legislature chooses appropriate words to express what it intends, and
therefore, must be attributed with such intention as is conveyed by the
words employed so long as this does not result in absurdity or anomaly or
unless material – intrinsic or external – is available to permit a
departure from the rule. Cross in Statutory Interpretation (3rd Edn., 1995)
states :

“The governing idea here is that if a statutory provision is intelligible
in the context of ordinary language, it ought, without more, to be
interpreted in accordance with the meaning an ordinary speaker of the
language would ascribe to it as its obvious meaning, unless there is
sufficient reason for a different interpretation. … Thus, an ‘ordinary
meaning’ or ‘grammatical meaning’ does not imply that the Judge attributes
a meaning to the words of a statute independently of their context or of
the purpose of the statute, but rather that he adopts a meaning which is
appropriate in relation to the immediately obvious and unresearched context
and purpose in and for which they are used. By enabling citizens (and their
advisers) to rely on ordinary meanings, unless notice is given to the
contrary, the legislature contributes to legal certainty and predictability
for citizens and to greater transparency in its own decisions, both of
which are important values in a democratic society.”

Yet again in M/s. Grasim Industries Ltd v. Collector of Customs Bombay, JT
(2002) 3 SC 551, it is stated :

“No words or expressions used in any statute can be said to be redundant or
superfluous. In matters of interpretation one should not concentrate too
much on one word and pay too little attention to other words. No provision
in the statute and no word in any section can be construed in isolation.
Every provision and every word must be looked at generally and in the
context in which it is used. It is said that every statute is an edict of
the legislature. The elementary principle of interpreting any word while
considering a statute is to gather the means or sententia legis of the
legislature. Where the words are clear and there is no obscurity, and there
is no ambiguity and the intention of the legislature is clearly conveyed,
there is no scope for the court to take upon itself the task of amending or
altering the statutory provisions.”

It is equally well settled that when the Legislature has employed a plain
and unambiguous language, the Court is not concerned with the consequences
arising therefrom. Recourse to interpretation of statutes may be resorted
only when the meaning of the statute is obscure. The Court is not concerned
with the reason as to why the Legislature thought it fit to lay emphasis on
one category of suitors than the others. A statute must be read in its
entirety for the purpose of finding out the purport and object thereof. The
Court, in the event of its coming to the conclusion that a literal meaning
is possible to be rendered, would not embark upon the exercise of judicial
interpretation thereof and nothing is to be added or taken from statute
unless it is held that the same would lead to an absurdity or manifest
injustice. It is well-established that a disabling legislation must be
characterized by clarity and precision. In the present instance, the
prohibitions laid down by Sections 223 and 236 of the Act are categorical
and comprehensive, and leave no scope for creative interpretation.

The Court, it is trite, cannot supply casus omissus. Reference in this
regard may be made on Dr. Baliram Woman Hirav v. Mr. Justice B. Lentin and
Others, AIR (1988) SC 2267, wherein it was observed :

“Law must be definite, and certain. If any of the features of the law can
usefully be regarded as normative, it is such basic postulates as the
requirement of consistency in judicial decision-making. It is this
requirement of consistency that gives to the law much of its rigour. At the
same time, there is need for flexibility. Professor H.L.A. Hart regarded as
one of the leading thinkers of our time observes in his influential book
“The Concept of Law”, depicting the difficult task of a Judge to strike a
balance between certainty and flexibility :

Where there is obscurity in the language of a statute, it results in
confusion and disorder. No doubt the Courts so frame their judgments as to
give the impression that their decisions are the necessary consequence of
predetermined rules. In very simple cases it may be so; but in the vast
majority of cases that trouble the Courts, neither statute nor procedents
in which the rules are legitimately contained allow of only one result. In
most important cases there is always a choice. The judge has to choose
between alternative meanings to be given to the words of a statute of
between rival interpretations of what a precedent amounts to. It is only
the tradition that judges ‘find’ and do not ‘make’ law that conceals this,
and presents their decision as if they were deductions smoothly made from
clear pre-existing rules without intrusion of the judge’s choice”

(See also Kanta Devi (Suit.) v. Union of India and Another, [2003] 4 SCC
753).

In Shrimati Tarulata Shvam and Others v. Commissioner of Income-tax, West
Bengal, [1977] 2 SCC 305, it was held that if there be a casus omissus, the
defect can be remedied only by legislation and not by judicial
interpretation.

Keeping in view the legislative policy we are of the opinion that the High
Court was not correct in its view that an Administration can be granted in
favour of a society registered under Act 21 of 1860.

The apprehension of the High Court that in a case of this nature, in the
event, a Letter of Administration is not granted in favour of the
beneficiary society, the purport of the ‘Will’ will be frustrated is not
wholly correct and for grant of Letter of Administration what is necessary
is that the person duly authorised by the Society in accordance with the
law may file such an application.

Furthermore, the validity of the Sections 223 an 236 of the Act is not in
question. So long the said provisions are not declared unconstitutional,
the same must be allowed to hold their feild.

We may state that, as noticed hereinbefore, in terms of rules framed by
States under the Societies Registration Act, a society may sue or may be
sued through its President or Secretary or in absence of any specific
provisions in that behalf, any person authorised by the Society.

Grant of probate in favour of society registered under the Societies
Registration Act is refused, as discussed hereinbefore, inter alia on the
ground it is not a juristic person. It, in a litigation, must be
represented through a person authorised in this behalf either in terms of
its bye-laws or otherwise. We, however, intend to lay emphasis on the fact
that a will or gift in favour of a society is not totally unenforceable in
law. A probate or Letter of Administration with a copy of the will annexed
although may not be granted in favour of a society but may be granted in
favour of a person authorised by a society either in terms of the statute
or a resolution adopted in this behalf by the society, as the case may be,
so that such person may be answerable to the Court. On grant of Letter of
Administration the person so nominated by the society shall carry out the
wishes of testator for the benefit of society.

Before parting, however, we may add that growing needs of the country in
this field of law appears to have not received sufficient attention of the
Parliament. Existing law is required to be suitable amended to meet the
requirement of changing scenario.

A Society registered under the Societies Registration Act in the changed
scenario play an important role in society. They discharge various
functions which are beneficial to the society. They run educational and
other institutions. They sometimes work in public interest and act in aid
of State functions. They have their own accountability. They sometimes
incur liabilities. Public Interest Litigations filed by Societies are
galore.

For reasons stated above, the appeal is allowed in part. The judgment under
challenge stand modified. The matter is sent back to the High Court with
liberty to respondent to amend the petition for grant of Letter of
Administration. It would be open to the respondent-society to nominate any
of its office-bearer to whom Letter of Administration is granted. Such
nominated person may move application for substitution for his name for
grant of Letter of Administration. If such amendment application is made,
the High Court shall permit this amendment and grant Letter of
Administration in favour of person nominated by the society for carrying of
the wishes of the testator which is for the benefit of the society.

 

 

Leave a Comment