K.L. Roy, J. - (1.) 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.
(2.) 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: 6. 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. 7. 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. 8. 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. 9. The quorum for General Meetings (ordinary or special) shall be 10 members.... 11. The President or, in his absence, the Vice -President shall preside at a General Meeting of the Society whether ordinary or special,... 13. 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. 19. (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. 30. 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.
(3.) 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: 1. Re: Regulation 1 (Note) -resolved that the words 'another member of his family' be deleted. 2. 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'. 3. 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'.;