Krishnadas Chatterjee vs Dr. M.N. Chatterjee Memorial Eye Hospital Society

K.L. Roy, J.—This is another instance of the members, in this case also relations, of a public institution indulging in litigation with the object of increasing or maintaining their control and management of the institution without even any pretensions that the litigation would result in any benefit to the institution. When the case was opened I expressed the view that the dispute should be amicably settled and the funds of the institution should not be utilized for such litigation. The institution involved in this suit, Dr. M. N. Chatterjee Memorial Eye Hospital, with which some of the leading ophthalmic surgeons of this city are actively connected, is rendering sterling service to the public and it is very unfortunate that disputes as to its internal management should be ventilated in a Court of law.

On April 23, 1939, the late Dr. M. N. Chatterjee, an eminent eye specialist of the city, made and published his will appointing his two sons Krishnadas Chatterjee or K.D. Chatterjee being the Plaintiff No. 1 and Hrishikesh Chatterjee since deceased, and his daughter''s son Manindra Lal Mukherjee or M.L. Mukherjee, the Defendant No. 2, as his executors and trustees and directed the said trustees to establish an eye hospital with the income of two properties, viz- Nos. 24 and 31 Chittaranjan Avenue, Calcutta, which were to be held in trust for the aforesaid purpose. Dr. Chatterjee died on April 25, 1939, and the probate of his will was duly obtained from this Court by the executors named therein. On August 23, 1940, the said executors and trustees executed a deed of trust with regard to the said two properties in terms of the said will and transferred the two properties to themselves as trustees. As was to be expected disputes and differences arose between the trustees and on March 11, 1944, a suit being Suit No. 359 of 1944 was filed in this Court by Krishnadas Chatterjee and Hrishikesh Chatterjee against Manindra Lal Mukherjee and others, inter alia, for framing a scheme for administration of the said trust properties. Under an order made in the said suit the said premises No. 31 Chittaranjan Avenue, Calcutta, was sold by the Receiver appointed by the Court and with the sale proceeds thereof the premises No. 295/1 Upper Circular Road (now Acharya Prafulla Chandra Road), Calcutta, the family dwelling house of the late Dr. Chatterjee, was acquired. Sometime in April 1954, Dr. M. N. Chatterjee Memorial Eye Hospital Society (hereinafter referred to as the Society) was incorporated and registered under the Societies Registration Act (XXI of 1860) and the Memorandum of Association and the Rules and Regulations thereof were drafted under orders of this Court by three special referees appointed by this Court and the three trustees. It would be necessary to set out in detail some of the relevant provisions of the said Memorandum and the said Rules and Regulations. One of the objects of the Society is to maintain an eye hospital established at premises No. 295/1 Upper Circular Road, Calcutta, under the name of Dr. M. N. Chatterjee Memorial Eye Hospital. Clause 7 of the Memorandum authorizes the Society to make, from time to time, rules and regulations for defining the powers and functions of the governing body or the trustees, for admission, continuance or termination of membership or for matters relating to the management of the Society and the institution under it. Clause 8 provides that the trustees appointed under the will of the late Dr. Chatterjee shall be the trustees of the Society until their successors are appointed in accordance with the rules and regulations of the Society, such successors to be co-opted from amongst the male members of the family of the founder Dr. M. N. Chatterjee, deceased. Under Clause 9 the management, supervision and control of the Society and the several institutions thereunder shall vest in a Governing Body formed in accordance with the Rules and Regulations of the Society and the said clause enumerates the names of the members of the first Governing Body and the trustees. The Plaintiff K.D. Chatterjee, H. K. Chatterjee since deceased, and the Defendant M. L. Mukherjee were members of the Governing Body and also trustees as mentioned in the said clause. Rule 1 of the Rules and Regulations of the Society provides for the different classes of members of the Society, viz. (a) foundation members, (b) honorary members (c) life members, (d) ordinary members and (e) exosmic members. The foundation members are (i) the medical referees appointed by the High Court to frame the scheme, (ii) the trustees appointed by the will of late Dr. Chatterjee and (iii) sons or sons'' sons and daughters or daughters'' sons of the founder late Dr. M. N. Chatterjee. There is a note to the aforesaid provision to the effect that each foundation member excepting the medical referees shall be entitled to nominate in writing another member of his family as his or her successor. The other material provision is that for ordinary members which provides that all persons paying a subscription of Rs. 50 per annum, who being duly proposed and seconded have been elected by the Managing Committee (sic) by a majority of votes and confirmed at a General Meeting of the Society would become ordinary members. The other relevant Rules are as follows:

The Annual General Meeting of the Society shall be held once a year. Notice of at least 14 days shall be given for an Annual or Ordinary General Meeting.

The business of an Annual General Meeting shall, besides other matters that may need consideration include the following:

(a) Consideration of the Report of the Governing Body for the preceding year.

(b) Consideration of the audited account of the preceding year.

(c) Passing of the Budget for the ensuing year.

(d) Election of the President and the Secretary of the Society.

(e) Election of the Governing Body.

(f) Appointment of auditor or auditors for the ensuing year.

A Special General Meeting of the Society may be called by the President�(1) if he considers it necessary for any special purpose to call such a meeting, or (ii) if there is a requisition in writing signed by at least one-third of the total number of members of the Society specifying the object. of the meeting. In the latter case if no meeting is called within 3 weeks from the delivery of the requisition, the requisitionists may themselves call the meeting by giving at least 14 days'' notice to the members of the Society.

The quorum for General Meetings (ordinary or special) shall be 10 members....

The President or, in his absence, the Vice-President shall preside at a General Meeting of the Society whether ordinary or special,...

The Governing Body shall be constituted of not less than 11 and not more than 15 members in the following manner:

(i) The President of the Society.

(ii) Vice-President of the Society.

(ix) One representative of the sons of late Dr. M. N. Chatterjee elected from amongst themselves by a majority of votes.

(x) One representative of the daughters of late Dr. M. N. Chatterjee elected from amongst themselves by a majority of votes,

(xi) Two members shall be elected from amongst the ordinary and life members of the Society at the Ordinary General Meeting of the Society by majority of votes of members present.

(i) Meetings of the Governing Body shall be called by notice over the signature of the Secretary and such notice shall be given at least 7 days before the date fixed for the meeting, emergent meetings may be called on shorter notice. (ii) The President himself may call a meeting of the Governing Body whenever he considers it necessary.

These Rules and Regulations or any of them may be varied, repealed, amended or added to from time to time by the Society at a Special General Meeting of the Society to be called for the purpose by a majority of votes of the members present and voting, and provided that such variation, repeal, amendment or addition has first been considered by the Governing Body, and notice of the same has been given to the members of the Society at least 7 days before the date of the General Meeting.

By an order of this Court and made in the said Suit No. 359 of 1944 the Defendant Jayanta Kumar Chatterjee was appointed a trustee in the place of Hrishikesh Chatterjee on the latter''s death in 1957. The members of the Governing Body elected at the 11th Annual General Meeting of the Society held on February 20, 1965, are the three Plaintiffs and the Defendants Nos. 2 to 11. At the meetings of the Governing Body of the Society held on July 27, 1965, August 31, 1965 and October 26, 1965, Sm. Rama Chatterjee, the daughter of the Plaintiff No. 1, Sri Asit Kumar Mukherjee and Sri Paresh Nath Mukherjee were elected and their names were recommended to the next Annual General Meeting for confirmation as ordinary members. Certain proposals for the amendment of the Regulations of the Society were made by the Plaintiffs Nos. 1 and 2 and the Defendant No. 2. The said proposals are contained in (i) a letter from Murari Chatterjee, the Plaintiff No. 2, dated November 12, 1965 (DD. 4), (ii) in the letter from M. L. Mukherjee, the Defendant No. 2, dated November 20, 1965 (DD. 5) and (iii) in the letter from K.D. Chatterjee, the Plaintiff No. 1, dated December 30, 1965 (DD. 6). Of these proposals the ones that are material for the purpose of this litigation are the proposals made by the Defendant M. L. Mukherjee which are to the following effect:

Re: Regulation 1 (Note)�resolved that the words ''another member of his family'' be deleted.

Re: Regulation 13(iv)�resolved that the words ''amongst themselves'' be deleted and be replaced by the words ''by a majority of votes of the members present and voting at an Annual General Meeting''.

Re: Regulation 13(ix)�resolved that the existing regulation being No. 13(ix) which reads as ''One representative of the sons of late Dr. M. N. Chatterjee elected from amongst themselves by a majority of votes'' be deleted and replaced by ''one member from the category of the sons of late Dr. M. N. Chatterjee or their successors to be elected by a majority of votes of the members present and voting at an Annual General Meeting''.

Re: Regulation 13(x)�resolved that the existing regulation being No. 13(x) which reads ''one representative of the daughters of the late Dr. M. N. Chatterjee elected from amongst themselves'' be replaced by ''one member-from the category of the daughters of late Dr. M. N. Chatterjee or their successors to be elected by a majority of votes of the members present and voting at an Annual General Meeting''.

The effect of these amendments would be that the right of the families of the sons and daughters of late Dr. Chatterjee to nominate or elect their own successors to the Governing Body would be replaced by such representatives being elected by all the members of the Society present at an Annual General Meeting. Serious objections were taken to the proposed amendments by some of the foundation members of the Society as would appear from the two letters dated January 8, 1966 and January 9,1966, being P.D. No. 1 and P.D. No. 2 respectively. The main objections to the proposed amendments as disclosed in these letters were that the right given to the descendants of late Dr. Chatterjee under his will was being taken away. At a meeting of the Governing Body of the Society held on January 11, 1966, it was inter alia resolved that the names of the eleven persons mentioned therein be elected as ordinary members of the Society and that their names be recommended to the General Meeting of the Society for confirmation. It was further resolved that the letters containing the proposed amendments received from Messrs. Murari Chatterjee, M. L. Mukherjee and K. D. Chatterjee be placed at the General Meeting to be held on January 29,1966, to be followed by a Special General Meeting. The meeting noted that the Chairman and most of the visiting surgeons of the hospital will be away from Calcutta from February 7 and, accordingly, the Annual General Meeting fixed to be held on February 8, 1966, was postponed until further notice. On January 13, 1966, a notice was given for the holding of an Ordinary General Meeting of the Society on January 29, 1966, to transact the following business:

To confirm the election by the Governing Body of the following members:

(Then the names of fourteen such members are enumerated).

To consider Murari Chatterjee''s and Mukunda Lal Chatterjee''s letters with a view to frame proposals for amendment to be placed before a Special General Meeting of the Society.

To discuss two letters from foundation members and their successors against the background of M. L. Mukherjee''s proposals for amendments to be taken up at a Special General Meeting.

Sri K.D. Chatterjee''s proposals for amendments to be taken up at a Special General Meeting.

On January 22, 1966, a letter was addressed by the Plaintiff D. K. Chatterjee to the Chairman and the members of the Governing Body of the Society objecting to the confirmation of the ordinary members at a General. Meeting as such confirmation has always been done at the next Annual General Meeting. The letter further protests against the proposals for amendments of the Regulations of the Society being considered at an Ordinary General Meeting as such amendments can only be passed in a Special General Meeting of the Society called for that purpose. On January 24, 1966, another letter of objection signed by K.D. Chatterjee and eleven other members of the Society was addressed to the Defendant No. 2 as Secretary of the Society contending that there was no provision in the rules for calling a General Meeting other than the Annual General Meeting and the Special General Meeting and also that the confirmation of the election of the ordinary members could not be made in such a General Meeting, as such, confirmation could only be made in a Special General Meeting. On January 29,1966, an Ordinary General Meeting of the Society was held under the chairmanship of Dr. N. K. Munshi, the President of the Society, and the objections to the validity of holding the said meeting as raised in the aforesaid two letters were over-ruled by the Chairman and after the said ruling given by the Chairman the business of the meeting commenced. The confirmation of the election of the ordinary members were carried in three cases unanimously, in another three cases with one vote against and in the case of the others with twenty in favour and four against. So far as the letters proposing the amendments were concerned the meeting decided that the proponents should submit their proposals in the form of resolutions within 7 days from the date of that meeting and directed the Secretary to put up such resolutions for consideration at the next Special General Meeting. On February 7, 1966, the President, Dr. Munshi, wrote to the Secretary, the Defendant No. 2, that as he was leaving Calcutta on the 8th and was not returning till the 15th and as he understood that he had to call a special General Meeting of the Society as its President and as the maximum time-limit given to the several proposes for communicating their proposals expired on February 12, 1966, he was enclosing a copy of the notice over his signature calling the Special General Meeting on Monday, February 21, 1966, and asked the Secretary to take necessary steps in the matter. A notice dated February 13, 1966, under the signature of the President was issued to the members of the Society calling a Special General Meeting of the Society on Monday, February 21, 1966, to consider and, if thought fit, to pass with or without modification of the following special resolutions:

Special resolution (proposed by Sri Mukunda Lal Chatterjee).

Special resolution (proposed by Sri M. L. Mukherjee).

Special resolution (proposed by Sri K.D. Chatterjee).

After each of the aforesaid special resolutions the details of such resolutions were given in the notice. This suit was filed on February 18, 1966, and an interim order was obtained, which was subsequently varied, to the effect that the Special General Meeting to be held on February 21, 1966, could be held at the appointed time and place ; that the fourteen new members should cast their votes,-but such votes should be recorded separately ; and that no effect should be given to the decision of the meeting. On February 21, 1966", the Special General Meeting of the Society was held in which the three Plaintiffs were also present. The President informed the meeting of the aforesaid order of this Court and stated the procedure to be adopted in order to implement the directions given in that order. In that meeting the amendments proposed by M. L. Mukherjee, the Defendant No. 2, were all carried by a substantial majority even without taking into consideration the votes of newly elected members while the amendments proposed by Mukunda Lal Chatterjee and the Plaintiff K.D. Chatterjee were rejected by a substantial majority. Subsequently, on May 20, 1966, the twelfth Annual General Meeting of the Society was held under the directions of this Court when the minutes of the Special General Meeting held on February 21, 1966, were confirmed. The subsequent Annual General Meeting was also held under a further direction from this Court in June 1968, and it is admitted that no election of any office-bearers took place in either of these two General Meetings.

In the plaint the Plaintiffs have claimed a permanent injunction restraining the Defendants from holding a Special General Meeting on February 21, 1966, and also a permanent injunction restraining the Defendants from giving effect to the amendments which might be passed and approved of at such Special General Meeting; for a declaration that the appointment of the Defendants Nos. 13 to 26 as members of the Defendant Society was void and illegal and that the meeting purported to have been held on January 29, 1966, and the resolutions passed therein were also void and illegal; for a permanent injunction restraining the Defendants Nos. 13 to 26 from exercising the voting rights at the said Special General Meeting or at any other meeting of the Society; a decree for Rs. 25,000 for damages against'' the Defendant Manindra Lal Mukherjee, and costs.

Three different written statements have been filed, the first one on behalf of Defendants Nos. 1, 2 and 6 to 10 on July 28, 1966, the second on� behalf of Defendants Nos. 3, 12, 15, 21, 22, 23, 25 and 26 on August 29, 1966, and the third on behalf of Defendants Nos. 4, 11, 13, 16, 18, 19 and 20 on November 22, 1966. The first written statement contains 33 paragraphs and is drawn by Mr. Tapas Kumar Banerji, Barrister-at-law. The second written statement contains 34 paragraphs and is purported to be drawn by Mr. Asoke Kumar Sen Gupta, Advocate, but strangely enough it is identical word for word (except the numbering of the paragraphs) with -the first written statement. The third written statement, again containing 32 paragraphs and purported to be drafted by Mr. Asoke Kumar Sen Gupta, Advocate, has its first 30 paragraphs identical with the first 30 paragraphs of the second written statement while paras. 31 and 32 of the second written statement have been re-numbered as paras. 33 and 34 in the third written statement while two new small paras. 31 and 32 have been inserted. Evian if the summons had been served on the different Defendants at different times and it was necessary to file separate written statements, I fail to see why the subsequent written statements could not simply adopt the first written statement filed, specially as the firm of Attorneys acting on behalf of the Defendants is the same. In� the written statement each and every contention raised in the plaint has been denied. In particular, it has been denied that the aforesaid meetings were held in violation of the Rules and Regulations of the Society, or that the purported election and confirmation of such election of the ordinary members was illegal or void. The written statements also deny the allegations made in the plaint of mala fides on the part of the second Defendant or that the President, Dr. Munshi, has allowed the affairs of the Society to be left solely in charge of the second Defendant. The claim of the Plaintiff for damages has also been denied. On the pleadings the following issues were raised and settled:

(a) Are the appointments of the Defendants Nos. 13 to 26 or any of them as members of the Defendant Society void or illegal or ultra vires as alleged in para. 23 of the plaint ?

(a) Are the Plaintiffs estopped from challenging the validity of the meeting held on January 29, 1966, and of the resolutions passed therein as stated in paras. 16 and 17 of the written statement ?

Was the notice dated February 13, 1966, illegal, void or ultra vires or mala fide, for any of the reasons alleged in paras. 34 and 35 of the plaint ?

To what relief�s, if any, are the Plaintiffs entitled ?

One would have thought that in a case like this where the facts are not in dispute and the decision rests more or less on the construction of the relevant clauses in the Memorandum and Rules and Regulations of the Society no oral evidence would be tendered. But the two principal protagonists, namely K.D. Chatterjee, Plaintiff No. 1, and Manindra Lal Mukherjee, Defendant No. 2, went into the witness-box and fully confirmed my first impression that this was a personal fight between the members of the families of the sons and daughters of late Dr. M. N. Chatterjee for retaining control over the affairs of the Society without being of any benefit or advantage to the Society.

In fairness to Mr. Das and his clients, the Plaintiffs, it must be recorded that as soon as I indicated my view, the Plaintiffs expressed their willingness not to press any of the claims in suit if the Defendants agreed not to give effect to the alleged amendments curtailing the rights of the descendants of Dr. Chatterjee of electing the representatives from the respective branches to the Governing Body or to nominate their successors. I thought this was very reason-able considering that the institution came into existence through the munificence of late Dr. Chatterjee, who had expressed his desire that his descendants should be represented in the management. But though several adjournments were granted for that purpose, learned Counsel for the Defendants ultimately informed me that the present Governing Body was not willing to settle the suit on these terms and had purported to pass a resolution to that effect.

K.D. Chatterjee, the Plaintiff No. 1, was the first witness ? examined on behalf of the Plaintiffs. The witness stated that he was one of the Trustees under the will of his father, late Dr. M. N. Chatterjee, and a foundation member of the Governing Body of the Society. The Memorandum and the Rules of the Society were drafted by the Special Referees appointed by this Court and the three- Trustees. His evidence was that though in the meetings of the Governing Body held on April 27, August 31 and October 26, 1965, Sm. Rama Chatterjee, Ashit Mukherjee and Paresh Nath Mukherjee were elected ordinary members and their names forwarded to the next Annual General Meeting for confirmation, the names were not put up for such confirmation at any such Annual General Meeting. He further stated that at the meeting of the Governing Body held on January 11, 1966, the names of eleven persons elected as ordinary members were recommended to a General Meeting of the Society for confirmation. Further, the said meeting simply forwarded the proposals for amendments of the Regulations together with the letters of objections thereto to the General Meeting to be held on January 29, 1966, to be followed by a Special General Meeting without itself considering them. He stated further that be objected to the holding of the General Meeting on January 29, 1966, both on the ground that there was. no provision for such a meeting in the Rules and that the ''election of ordinary members could not be confirmed in such a meeting. Both his objections were overruled by the Chairman, Dr. Munshi.

10, According to this witness, the 7 days'' notice given for the Special General Meeting to be held on February 21, 1966, was unconstitutional. The witness was emphatic that the minutes of the General Meeting held on January 29, 1966, were not correct as neither the statements that the meeting reacted sharply to the unmannerly and offensive tone of the letters signed by some foundation members on the daughters'' side, nor that Sachindra Nath Mukherjee, one of the signatories to the letter under reference, apologized were true. The witness further stated that though ostensibly the Society is managed by a Governing Body, in fact all its affairs are managed and controlled by the Secretary Manindra Lal Mukherjee as he had been the Secretary of the Society for the past eight years. The witness''s objections and protests were not heeded to. He also stated that Dr. Munshi, the President, was a very busy practitioner who came to the hospital only twice a week to perform operations and. had no time to devote to the affairs of the Society which were allowed to be looked after by the second Defendant. The witness further stated that the last Annual General Meeting of the Society was held under the direction of this Court on June 18, 1968, but no office bearers including the President and the Secretary were elected at that meeting. In cross-examination the witness admitted that on May 20, 1966, an Annual General Meeting of the Society was held in terms of the order of this Court dated March 14, 1966. He denied that he voted in favour of the confirmation of membership of his daughter or anybody else at the meeting of January 29, 1966, and that the recording of the minutes of that meeting that these confirmations were passed unanimously was incorrect. He admitted that he had never raised any objection to the correctness of the minutes after the date of the meeting. He also stated that more than four persons voted against the proposal for confirmation of the election of the remaining eleven members at that meeting and item No. 8 was not correct. The witness could not explain why the averment in the affidavit of Manindra. Lal Mukherjee in opposition to the petition of the Plaintiffs for an interim injunction that those three members were elected unanimously was not denied in the affidavit-in-reply. The witness admitted that in the several letters written by him to the Secretary or President of the Society he had never alleged that the minutes were not correct. He insisted that in the meeting of the Governing Body held on� January 11, 1966, there was no discussion of the proposals for amendment. They were simply forwarded to the Special General Meeting.

The only other witness examined on behalf of the Plaintiffs was Sachindra Nath Mukherjee. He gave evidence as to what happened in the meeting of January 29, 1966, and emphatically denied having offered any apology for the letter written by some of the descendants of late Dr. Chatterjee on the daughters'' side including himself as recorded in the minutes. He also stated that the said minutes were not circulated to, the members for their information or for confirmation. He confirmed the evidence of K.D. Chatterjee that the election of none of the members at that meeting was unanimous. The witness admitted that at the 12th Annual General Meeting held on May 20, 1966, he was present when a resolution adopting the minutes of the meeting of January 29, 1966, as circulated to the members was passed but said that he along with others objected. He also said that the minutes might have been circulated, but he had no recollection. This witness appeared to be very quick tempered and truculent. I cannot believe that he would humbly apologies for any letter written by him particularly as I find that there is nothing unmannerly or offensive in the letter dated January 9, 1966 (P.D. No. 2). The only strong terms used were ''audacity'' and ''autocracy'' on the part of the mover of the amendment (Defendant No. 2) who also belonged to the group of descendants on the daughters'' side of Dr. Chatterjee. I cannot think how the meeting could have reacted sharply to the remarks contained in that letter. Obviously, that part of the minutes had been introduced by the second Defendant to vindicate his position.

The lone witness on behalf of the defence was Manindra Lal M''ukherjee, the Defendant No. 2 He stated that he had been working as the Secretary of the Society since 1958 and that there had never been any objection to him. He affirmed that the notice of the Ordinary General Meeting of the Society held on January 29, 1966, had been correctly recorded and that the three members mentioned had been unanimously elected. He also said that the part of the said minutes recording the apology of Sachindra Nath Mukherjee was also correct. He denied that Dr. Munshi acted under his dictation or that he took no interest in the affairs of the Society. At first, the witness said that all the proposals for the amendments were considered in detail by the Governing Body (Q. No. 22), but later in cross-examination admitted that the Governing Body had only decided to place these before the Special General Meeting for consideration (Q. No. 125) and also that ''they decided neither in favour nor against the amendment. They simply forwarded it for consideration in the Special General Meeting'' (Q. No. 145). It took over questions (Qs. Nos. 36-81) to make this witness admit that no election either of the Secretary or the President, had been made in either of the two Annual General Meetings of the Society held in May 1966 and June 1968. It was pointed out to this witness that there was nothing in the order of this Court prohibiting the Society from holding the election of its office bearers in these two meetings. The witness admitted that before 1965 there was only one ordinary member-and that the total membership of the Society before January 1, 1966, was about 54/55. He corrected himself in answer, to a question from the Court and said that at that time there were 11/12 foundation members and, thereafter, there were additions and the number came to about 55. The witness protested that his object in proposing the amendments was not to take away any rights of the descendants of Dr. Chatterjee but to broad-base the elections but was not quite clear as to what he meant. The witness could not recall whether any other Special General Meeting of the Society had ever been held. Though the letter enclosing the notice signed by Dr. Munshi was dated February 7, 1966, the witness stated that the notice of 7 days for the Special General Meeting to be held on February 21, 1966, was given after consultation with Dr. Munshi and at his suggestion (Qs. Nos. 168-69). But in that letter Dr. Munshi informs the witness that he is leaving Calcutta on (the 8th and returning on the 15th while the impugned notice was issued on the 13th. Though admitting that the notice dated February 13 did not mention that the Governing Body had considered the proposed amendments the witness stated that they had in fact been considered and were intended to be considered at the General Meeting (Qs. Nos. 191-94, 202). He further defended the said notice by saying that the members knew the Rules and Regulations and they knew that the proposals for amendment had been considered by the Governing Body. The only comment I wish to make about the evidence given by this witness is that he should have left the arguments and submissions to be made by his lawyers and not venture into the witness-box. His evidence has further confirmed my impression that the whole dispute is between some of the descendants of the late Dr. Chatterjee and this Defendant and that the Society and the other members have been needlessly dragged into this litigation.

The rest of the evidence of all these three witnesses consisted in answering questions put by learned Counsel as to the interpretation and meaning of various Rules and Regulations of the Society and the provisions of its Memorandum. As these witnesses cannot be regarded as experts in the interpretation and construction of documents the Court could very well do without such evidence.

Mr. Banerjee, learned Counsel for the Defendants, pointed out that the Defendant M. L. Mukherjee was appointed the Secretary of the Society under an order of this Court in 1954 and has been the Secretary since, except for an interval of two years, and in almost every year before the institution of this suit his name has been either proposed or seconded by one of the Plaintiffs. The learned Counsel first dealt with Issue No. 1(a) which challenges the validity of the election of the Defendants Nos. 13 to 25 as ordinary members of the Society. The issue has been raised in para. 23 of the plaint which alleges (a) that the Governing Body in its meetings held on July 27, August 31, 1965 and January 11, 1966, decided that the election of these Defendants would be confirmed in the next Annual General Meeting, but no such meeting was held and the elections were purported to have been confirmed in an alleged Ordinary General Meeting, and (b) that there was no provision in the Rules and Regulations of the Society for the holding of an Ordinary General Meeting. Mr. Banerjee referred to Rule 1(b) of the Society which provides that the election of ordinary members should be by the Governing Body by majority of votes and confirmed at a General Meeting. It was, therefore, intra vires for the Society to confirm the election of ordinary members at an Ordinary General Meeting. K.D. Chatterjee, the Plaintiff No. 1, in his evidence has admitted that the Annual General Meeting was postponed owing to the absence from Calcutta of the President and most of the visiting surgeons of the Society at the relevant time and that nobody objected to such postponement of the Annual General Meeting due to be held on February 8, 1966. I agree with the submission of the learned Counsel. The authority cited by Mr. Das himself in Halsbury''s Laws of England. (3rd ed., vol. VI, p. 329) that an ordinary meeting is any meeting which by statute or articles. of the company must be held periodically and generally means the Annual General Meeting of the company also supports this view. Mr. Banerjee next contended that the Plaintiffs had not only attended the Ordinary General Meeting of the Society held on January 29, 1966, but had participated in the proceedings after the President had overruled their objections against the holding of the meeting. It has been stated both by K.D. Chatterjee and Sachin Mukherjee in their evidence that they voted against the confirmation of the election of any of the persons as ordinary members and the other two Plaintiffs had also presumably voted against the proposal for confirmation. According to the learned Counsel the Plaintiffs having attended the meeting taken part in the deliberations and exercised their votes are estopped from denying the validity of the meeting, and in support of this proposition the decision of the Privy Council in Chowdhri Murtaza Hossain v. Mussamat Bibi Mechunnissa 3 I.A. 209 was cited. The facts in the above case were that the Appellant, having a clear knowledge of the circumstances on which he might have founded an objection to the arbitrators proceeding to make their award, submitted to the arbitration proceedings, taking a chance of the decision being favorable to him. The Privy Council held that it was too late for him, after the award was made and on the application to file the award, to raise the objection to the validity of the award. The ratio of that case has no application here. The Plaintiffs attended the meeting under protest, raised their objections to the meeting being held and on being overruled took part in the proceedings. No estoppel could arise in such a case. The Plaintiffs had not by any act or omission caused the Defendants or any other person to believe anything to be true and to act on such belief. They had all along objected to the holding of the meeting. Mr. Das did not seriously contest Issue No. 1(a). I would, therefore, answer both the Issues Nos. 1(a) and 1 (b) in. the negative.

The principal contest was on Issue No. 2 which disputes the validity of the purported amendments made in the Rules and Regulations of the Society as proposed by the Defendant No. 2 and adopted in the Special General Meeting purported to have been held on February 23, 1966? while rejecting the amendments and additions to the said Rules and Regulations proposed by the Plaintiffs. The challenge is to the legality or sufficiency of the notice dated February 13, 1966, calling the Special General Meeting of the Society to be held on the 21st, i.e. only giving seven clear days'' notice. The grounds for the challenge are stated in paras. 34 and 35 of the plaint and are as follows:

(i) Regulations 6 and 8 provide for a notice of 14 days in the cases of an Annual General Meeting, an Ordinary General Meeting and a Special General Meeting. The notice of 7 days for calling a Special General Meeting was too short.

(ii) The proposed amendments have not been first considered and approved by the Governing Body as required by Regulation 30 before being put up at the Special General Meeting.

(iii) The proposed amendments are ultra vires the Memorandum and Regulations of the Society as they exceed the rulemaking power of the Society under Clause 7 of the Memorandum. (iv) The proposed amendments are mala fide as they intend to curtail the rights of the family of late Dr. M. N. Chatterjee to select and elect their own representatives in the Governing Body. As such rights were conferred by the original constitution they could not subsequently be taken away.

(v) That in issuing the said notice the President, Dr. Munshi, did not apply his mind but simply acted at the instance of and under the influence of the Defendant Manindra Lal Mukherjee.

Mr. Banerjee pointed out that Regulation 8 did not provide for any period of notice for a Special General Meeting. It is only where such a meeting is not called in response to a requisition by the requisite number of members that the requisitionists could themselves call a meeting at 14 days'' notice. If no specific period of notice is provided for in the Regulations, then reasonable time should be allowed under the notice, and in this case nobody has complained that the period of notice was unreasonable. Regulation 6 does not apply to a Special General Meeting and the only provision for such a meeting is in Regulation 30. Learned Counsel submitted that the notice contemplated in the latter part of that Regulation is the notice of the Special General Meeting. According to him, it is absurd to suggest that any notice would be required to be given of the consideration of the proposals by the Governing Body. - Mr. Banerjee next argued that there was no provision in Regulation 30 that the proposed amendments should not only be considered, but also be approved by the Governing Body. All that was required under that Regulation was that the proposals should be considered by the Governing Body before being referred to the General Meeting for confirmation. He further pointed out that the minutes of the meeting of the Governing Body held on January 11, 1966 (p. 47 o� Ex. A, Item No. 5), show that the letters proposing the amendments were considered and the objections thereto recorded and that the said letters were directed to be placed before the next General Meeting. As a matter of fact, one of the proposes, Mr. N. K. Mukherjee, withdrew his proposal at the request of other members. It is, therefore, idle to suggest that the proposals were not considered by the Governing Body at that meeting.

Clause 7 of the Memorandum authorizes the Society to make rules and regulations for defining the powers and functions of the Governing Body and the Trustees and matters relating to membership and management of the Society. Regulation 13 deals with the constitution of the Governing Body. Clause 7 of the Memorandum does not limit the right of the- Society to amend, alter or repeal its Rules and Regulations. Further, Regulation 30 has been framed under the authority conferred by Clasuse7 and Regulation 30 provides for the repeal or amendment of the Rules and Regulations.

As no immutable right has been granted to the members of the family of late Dr. Chatterjee to nominate or elect their successors or representatives, the amendments could not be said to be mala fide. Further, the allegation of mala fide, is only against the Defendant M. L. Mukherjee and not against the other members of the Society. No evidence has been produced or tendered by the Plaintiffs to substantiate the allegations in para. 35 of the plaint that Dr. Munshi had not applied his mind but had been influenced by the Defendant No. 2. The said paragraph was not even put to the Defendant M. L. Mukherjee in cross-examination while he was giving evidence.

Mr. Das, in his reply, first referred me to Regulation 19 which provides for the calling of the meeting of the Governing Body. He pointed out that under Regulation 19(i) such a meeting could be called on 7 days'' notice or. a shorter notice in the case of emergency. Regulation 19(ii) empowers the President to call such a meeting whenever he considered it necessary. It did not follow that the President could call a meeting, of the Governing Body under Regulation 19(ii) without any notice at all. The provisions as to notice in Regulation 19(i) should also apply to a meeting convened under Regulation 19(ii). The rule of ejusdem generis should apply in such a case.

Learned Counsel further contended that while an Annual General Meeting or an Ordinary General Meeting is to be called on 14 days'' notice as provided for in Regulation 6, even though no period of notice is mentioned in Regulation 8 for holding a Special General Meeting, a notice for such a meeting must be given and such a notice should at least be of 14 days'' as would appear to be the intention of the framers of the Regulations who have provided for notice of 14 days for a meeting convened by the requisitionists. Mr. Das submitted, in my opinion with some justification, that as a Special General Meeting is called for a special purpose the notice for such a meeting should be at least longer than the notice for calling a Governing Body meeting. Mr. Das further contended that an Ordinary General Meeting and a Special General Meeting are both general meetings of the Society and so the provision for notice contained in Regulation 6 should apply to all such meetings. Mr. Das pointed out that in Regulation 9, 11 and 17 no distinction has been made between an Ordinary and a Special General Meeting.

The next contention of Mr. Das was that Regulation 30 contained a main provision and a proviso, that any repeal, amendment, additions or alternations of the Regulations could be made by the Society at a Special General Meeting called for that purpose provided that such repeal, amendments etc. have first been considered by the Governing Body and notice thereof has been given to the members at least seven days before the date of the meeting. Mr. Das pointed out that a proviso excepts something from the main section, it cannot add to or govern the main section. As the main provision in Regulation 30 is silent as to the period of notice, the provisions of Regulation 6 are attracted and the proper notice for such a meeting should be fourteen days.

Mr. Das further contended that the minutes of the meeting of the Governing Body held. on January II, 1966 (pp. 47-48 of Ex. A) would show that the letters proposing the amendments were not considered but simply referred for consideration to the General Meeting to be held on July 29, 1966, and this is borne out by the evidence of the Defendant No. 2 (Qs. 125, 145). Further, the minutes of the General Meeting held on January 29, 1966 (p. 60, Ex. A), would show that the letters were considered and the proposes were required to send in their proposals in the form of resolutions within 7 days from that date so that the resolutions could be put up at the next Special General Meeting. By his letter dated January 22, 1966 (p. 57, Ex. A), the Plaintiff K.D. Chatterjee had pointed out that the proposals for amendment could not be considered in an Ordinary General Meeting.

Mr. Das finally contended that the only rule-making power given to the Society was under Clause 7 of the Memorandum to make rules for defining the powers and functions of the Governing Body or the Trustees and for the, admission of the members and to provide for the management of the Society. No power is given to amend or alter the Rules and Regulations by the Memorandum. So the alterations contemplated in Regulation 30 were alterations of, the rules for the management of the Society. This last contention can at once be rejected. A power to make rules also includes the power to add to, amend, alter or vary the rules. This follows from Section 21 of the General Clauses Act. Though the provisions of that Act are only applicable to statutory rules or bye-laws the same principle will also apply to any rule-making power.

Mr. Das summed up his objections to the validity of the notice and the proceedings of the Special General Meeting held oil February 21, 1966, as follows:

(1) that no notice of fourteen clear days were given for the Special General Meeting.

(2) that no notice of the consideration of the proposals for amendment by the Governing Body was given before seven days of the meeting as contemplated in the proviso to Regulation 30.

(3) that Regulation 30 does not specify any period of notice; that is provided in Regulation 6 and 8.

The Rules and Regulations of the Society are not very skillfully drafted. The terms ''General Meeting'', ''Special Meeting'', and ''Ordinary Meeting'' seem to have been indiscriminately used. Though there is a provision for 14 days'' notice in the case of the Annual General Meeting or an ordinary meeting, no provision for a notice has been made in r. 8 for the holding of a Special General Meeting; a notice of 14 days being necessary only in case the requisitionists themselves call the meeting. Regulation 19 provides for a notice of 7 days for calling a meeting of the Governing Body though such a meeting could be called at shorter notice in the case of an emergency. The rule also authorizes the President to call such a meeting whenever he considers it necessary. No question of any period of notice would arise in case the President decides to call a meeting of the Governing Body. Regulation 30, which provides for the repeal, variation, amendment or additions to the regulations, requires that the proposals for the amendments must first be considered by the Governing Body and then passed by a majority of the members present and voting in a Special General Meeting to be called for that purpose. The difficulty is created by the words�

....and provided that such variation, repeal, amendment or addition has first been considered by the Governing Body, and the notice of the same has been given to the members of the Society at least seven days before the date of the General Meeting.

Mr. Das'' contention is that the main provision is in the first part of the Rule while the second part is a proviso to the first part which requires that the proposed alterations or amendments should first be considered by the Governing Body and notice of such consideration should be given to the members at least 7 days before the date of the meeting. In support of his argument Mr. Das pointed out that Regulation 6 provided for a notice of 14, days for an Annual or an Ordinary General Meeting and the same provision should also apply to a Special General Meeting. I would have accepted Mr. Das'' contention if Regulation 30 was not there. Regulation 30 being a special provision for the holding of a meeting for the repeal, amendment or alteration of the rules must prevail over the general provision in Regulation 6 for the holding of general meetings. Mr. Banerjee''s submission, on the other hand, was that the words�

notice of the same has been given to the members of the Society at least 7 days before the date of the General Meeting must refer to the notice for that meeting. It seems to me that it would be unreasonable to hold that while all other General Meetings, whether Annual or Ordinary, required a notice of at least 14 days a Special General Meeting for the purpose of considering proposals for the repeal or amendment or additions to the Rules and Regulations of the Society could be called at a shorter notice of 7 days. While I agree with Mr. Banerjee that it would be most unusual for a provision for circulating the deliberations of the Governing Body, viz., that it had considered the proposals, to the general members before the meeting apart from the notice of the meeting itself, I find considerable difficulty in construing the words ''and notice of the same'' as they follow immediately after....

had been considered by the Governing Body.

Under the rules of grammar the word ''same'' should refer to the immediately preceding clause�

�such variations etc. had been considered by the Governing Body.

The rule for construction of documents, which has been called the ''golden rule'', is that the words of a document are to be construed according to their natural meaning unless such a construction would either render them senseless or would be opposed to the general scope and intent of the instrument or unless there be some cogent reasons of convenience in favour of a different intention. The instrument should be read as a whole and words should not be taken out of context and interpreted. See Union of India (UOI) Vs. Amarendra Nath Sarkara, . Reading the Rules and Regulations in their entirety and having regard to the earlier provisions for the holding of meetings of the Society, I am of the opinion that the notice referred to in the latter part of Regulation 30 means the notice of the Special General Meeting and such notice must be given at least 7 days before the date of the meeting. Construing the rule to mean that notice of the Governing Body''s consideration of the proposals was to be given would lead to an absurdity as it is accepted by counsel for both parties that apart from this rule there is no other provision for the period of notice for holding a Special General Meeting. In the result, Issue No. 2 must be answered in the negative and against the Plaintiffs. The suit must, therefore, be dismissed and the interim orders vacated. Seeing that the bad drafting of the Rules and Regulations of the Society contributed to the dispute between the parties I would direct each party to bear and pay his or its own costs. I further direct that the costs incurred; by or on behalf of the Defendant No. 1 in connection with this litigation are to be borne by the other appearing Defendants and that no part of the funds of the first Defendant Dr. M. N. Chatterjee Eye Hospital Society should be utilized for meeting any costs of this suit or any proceedings in connection therewith. If any such funds had already been utilized for this litigation they should forthwith be refunded to the Society.