Bombay High Court
Sucheta Desmond Rodrigues, Mumbai vs The Bombay Presidency Golf Club Limited … on 11 June, 2025
2025:BHC-AS:23382
1 Judgement-FA 1568-24.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.1568 OF 2024
IN
SUIT NO.3054 OF 2018
WITH
INTERIM APPLICATION NO.12343 OF 2024
IN
FIRST APPEAL NO.1568 OF 2024
Sucheta Desmond Rodrigues
Bungalow Amaay, Union Park,
Chembur (East), Mumbai - 400055. ... Appellant
(Orig. Plaintiff)
V/s.
1. The Bombay Presidency Golf Club Limited
Having address at Dr. Choitharam Gidwani Road,
Digitally Chembur, Mumbai 400074.
signed by
MUGDHA
MUGDHA MANOJ
MANOJ PARANJAPE
PARANJAPE Date:
2025.06.13
20:13:52 2. V. S. Rajan,
+0530
President, The Bombay Presidency Golf Club
Limited, Having address at Dr. Choitharam
Gidwani Road, Chembur, Mumbai 400074.
3. Col. R.S. Sekhon (Retd.)
Secretary, The Bombay Presidency Golf Club
Limited, Having address at Dr. Choitharam
Gidwani Road, Chembur, Mumbai 400074. ... Respondents
(Orig. Defendants)
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-----
Mr. Rohaan Cama a/w Mr. Kyrus Modi i/by Ms. Sapana Rachure for the
Appellant.
Mr. Gaurav Sharma a/w Mr. Pranav Chavan i/by Mahesh Menon & Company
for the Respondents.
-----
CORAM : ARIF S. DOCTOR, J.
RESERVED ON : 08TH MAY 2025
PRONOUNCED ON : 11TH JUNE 2025
JUDGEMENT :
1. The Appellant in this First Appeal is the Plaintiff in the captioned
Suit. Respondent No. 1 is the Bombay Presidency Golf Club Limited, which is
incorporated and registered under the Indian Companies Act, 1956 (“the
Club”), and Respondent Nos. 2 and 3 are the President and Secretary & Chief
Executive Officer of the Club, respectively.
2. The Appellant had filed the captioned Suit inter alia seeking a
declaration that the two children, namely, Amoorth Dayanand Shetty
(“Amoorth”) and Aadhyaa Dayanand Shetty (“Aadhyaa”), are entitled to enjoy all
rights and privileges of the membership of the Appellant with the Club.
Amoorth and Aadhyaa are hereinafter collectively referred to as ‘the Wards’.
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3. The Trial Court, however, vide a judgement dated 5 th July 2024
(“the Impugned Judgement”), dismissed the captioned Suit.
4. It is thus that the present First Appeal has been filed.
5. However, before adverting to the rival contentions, it is necessary
for context to set out the following facts:
i. The Appellant had, in the year 2017, applied for a short-term
membership of the Club for herself and four children, two of
whom were the Appellants biological children, and Amoorth
and Aadhyaa, who were the children of the Appellant’s
predeceased sister, one Sheetal Dayanand Shetty, and in respect
of whom the Appellant and her brother, one Rajkiran Shetty,
had been appointed legal guardians vide an order dated 7 th
April 2017 passed by the Bombay City Civil Court in Guardian
Petition No. 3 of 2016.
ii. The Appellant thereafter applied for permanent membership
(category B/Life) for herself, and in the form, she mentioned the
names of all four children under “Family Details”. The Appellant
annexed the following documents to the Application Form (a)
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4 Judgement-FA 1568-24.docthe Appellant’s passport, (b) the birth certificates of all four
children, (c) the death certificate of the Appellant’s sister and
(d) the Order dated 7 th April 2017 appointing the Appellant
and the Appellant’s brother.
iii. The Appellant then vide an email dated 13 th April 2018, stated
that she had made payment of Rs. 6,18,760/- towards her
membership of the Club in December 2017 and requested the
Club to allow her to make payment of the balance fees in
instalments, and proposed the following: (i) payment of Rs.
10,00,000/- on 2nd May 2018 (in respect of which she had
already deposited a post-dated cheque with the accounts
department of the Club that afternoon); (ii) payment of Rs.
10,00,000/- on 1st December 2018 (in respect of which also
she had already deposited a post-dated cheque with the
accounts department of the Club); and (iii) in respect of the
remaining balance amount she requested time until March
2020.
iv. The Club then, on 3rd May 2018, invited the Appellant and her
proposer to attend the ballot meeting which was scheduled for
24th May 2018 and noted that a sum of Rs. 10,00,000/- had
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been paid in advance and that the balance amount payable ‘ in
instalments’ was Rs. 49,00,000/-.
v. The Club then, vide an email dated 18 th May 2018, enclosed
certain EMI options, which stipulated that the payments could
be made in instalments between 1 to 4 years and interest would
be levied thereon at the rate of 15% per annum.
vi. On 25th May 2018, post the balloting, the Appellant was
conferred with her provisional membership, subject to the
completion of necessary compliances for her permanent
membership. The Appellant and all four children were issued
their respective membership cards and were permitted to use
the facilities of the Club.
vii. The Club then, on 14th September 2018, addressed a letter to
the Appellant cancelling the membership of the Wards inter
alia on the ground that the Club had, while processing
admission applications, missed the distinction between
adoption and guardianship and had inadvertently admitted the
Wards and issued them ID cards. The Club stated that since the
Wards were not the Appellant’s ‘real’ or ‘adopted’ children, and
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the Appellant was merely their guardian, they could not have
been admitted as dependents as per the Articles of Association
(“AOA”) of the Club.
viii. Challenging this termination of the Wards’ membership, the
Appellant then filed the captioned Suit and sought a declaration
that the Wards were entitled to enjoy the rights and privileges
of the Appellant’s membership with the Club as her dependents.
ix. On 13th November 2018, the Appellant took out Notice of
Motion No. 4310 of 2018 in the captioned Suit inter alia
seeking to restrain the Club from preventing the Wards from
entering and participating in the Club events.
x. On 6th March 2019, the City Court granted an injunction in
terms of prayer clause (a) of Notice of Motion No. 4310 of
2018 in the captioned Suit and directed the Club to maintain
status quo of the Wards’ use of the Club and restrained the Club
from taking any coercive action against the Appellant and the
children. By the said Order, the City Court also prima facie
observed that the bye-laws did not differentiate between
biological children, adopted children and wards.
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xi. The Club then, on 21st April 2019, sent the Appellant an email
enclosing a letter dated 18 th April 2019 that stated that there
was an outstanding amount of Rs. 40,08,153/- payable by the
Appellant towards her permanent membership and called upon
the Appellant to make immediate payment of the same.
xii. The Appellant, on 23rd April 2019, met one Manish Kulkarni,
an accounts executive of the Club, for a clarification as to the
balance amount payable. The Appellant vide an email of the
same date, informed the Club that the Appellant had thus far
made payment towards membership fees which exceeded Rs.
26,00,000/-. The Appellant also reiterated that while the Club
had offered every member a three-year instalment option/plan
to pay the membership fees, the Appellant had in less than one
year made payment of approximately 50% of the membership
fees. The Appellant thus requested the Club to verify the
accounts and resolve the matter. She also offered to visit the
accounts office of the Club to help resolve the matter
expeditiously. The Club, however, did not respond to this letter.
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xiii. The Club then, by a letter dated 23 rd July 2019, informed the
Appellant that she was in breach of Article 10 of the AOA and
also called upon the Appellant to make payment of the sum of
Rs. 41,56,526/- towards balance entrance fees along with
interest payable thereon by 31 st July 2019, failing which the
Appellant’s provisional membership would stand terminated
and all part payments made by the Appellant towards the
membership fees would stand forfeited.
xiv. The Appellant responded to the Club’s letter on 25 th July 2019
and called upon the Club to withdraw the letter dated 23rd July
2019, inter alia, stating that same was a counterblast to the
interim order dated 6th March 2019.
xv. The Club then, vide its letter dated 28 th July 2019, reiterated the
contents of the letter dated 23rd July 2019 and for the first time
contended that the Club had never accepted the Appellant’s
proposal to pay the membership fees in instalments nor had the
Club ever extended such an offer for the payment in
instalments to the Appellant. The Club thus demanded that the
Appellant make payment of the sum of Rs. 41,56,526/- within
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three days, i.e., by 1st August 2019, failing which the Appellants
membership would be terminated.
xvi. The Appellant then, on 20 th August, 2019, filed Suit No. 3262 of
2024 (“the Second Suit”), inter alia, seeking (i) a declaration
that she is entitled to make the balance payment of the fees
towards the membership of the Club in instalments; (ii) specific
performance of a contract entered into between the Appellant
and Respondents; and (iii) a permanent injunction restraining
the Club from unilaterally/arbitrarily terminating the
membership of the Appellant.
xvii. On 9th September 2019, the City Court in Notice of Motion No.
3216 of 2019 in the Second Suit passed an order in terms of
prayer clause (b) of the said Notice of Motion, subject to the
Appellant making payment of the entire outstanding amount
inclusive of interest within a period of eight weeks from the
date of the said order. It is not in dispute that the Appellant
made payment of the said amount within the prescribed time.
xviii. On 20th October 2023, this Court dismissed a challenge to the
interim order by expediting the hearing of the Suit.
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xix. As already noted above, the captioned Suit was disposed of by
the Impugned Judgement, which inter alia held as follows:
“25. … In this circumstances the plaintiff cannot take benefit of order passed in
guardian petition no. 3/2016 to substantiate that Master Amoorth and Ms.
Aadhya are entitled to avail club facilities. It is noteworthy to see that the
plaintiff has also declared Master Amoorth and Ms. Aadhya as her son and
daughter respectively in membership form. From the said conduct, it is seen
that the plaintiff was well aware that the wards are not entitled to avail the
club facility, therefore, she declared them as her son and daughter
respectively. The memorandum of articles of association and bye-laws of
the club do not permit wards to avail the right and privileges of the
membership of the plaintiff.
26. The plaintiff herself has declared Master Amoorth and Ms. Aadhya as her
son and daughter respectively. The plaintiff in her oral evidence has
categorically admitted her relationship with Amoorth and Ms. Aadhya.
Despite knowing the relationship, the plaintiff gave incorrect declaration in
membership form. Therefore, the claim of the plaintiff that defendant club
is estopped from denying the right of Master Amoorth and Ms. Aadhya
cannot be accepted for the reasons that the promise was based on the false
declaration made by plaintiff in the membership form. …”
Submissions on behalf of the Appellant:
6. Mr. Cama, Learned Counsel appearing on behalf of the Appellant,
at the outset submitted that the grounds on which the Trial Court had disposed
of the captioned Suit were entirely untenable and lacking merit. Dealing with
the contention that the Appellant had incorrectly declared the Wards as her
‘son’ and ‘daughter’ in her Membership Application Form dated 21 st March
2018 (“Application Form”), Mr. Cama submitted that there was no
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11 Judgement-FA 1568-24.docmisrepresentation or incorrect declaration on the part of the Appellant as
claimed by the Club since the Appellant had admittedly submitted the following
documents alongwith her Application Form:
i. The passport copies of all four children, which showed the
names of the parents of the Appellants’ biological children, i.e.,
Amaaya and Joshua, as Sucheta Rodrigues and Desmond
Rodrigues whereas the names of the parents of Amoorth and
Aadhyaa were shown as Sheetal Shetty and Dayanand Shetty.
ii. The birth certificates of all four children from which the name
of the mother of Amoorth and Aadhyaa was recorded as Sheetal
Dayanand Shetty.
iii. The death certificate of Sheetal Dayanand Shetty.
iv. A copy of the order dated 7 th April 2017 (“Guardianship Order”)
passed by the Bombay City Civil Court in Guardian Petition No.
3 of 2016, whereby the Appellant and her brother had been
appointed legal guardians of Amoorth and Aadhyaa.
7. He then submitted that in light of the fact that all these documents
were submitted, and along with the Appellants Application Form, the question
of any misrepresentation or suppression on the part of the Appellant did not
arise. He submitted that the Appellant, having submitted all of the above, it
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12 Judgement-FA 1568-24.docwould be facile to contend that the Club did not scrutinise or even cursorily
look at the documents before granting the Appellant and her dependents
provisional membership and issuing all of them identity cards.
8. Mr. Cama then placed reliance upon the cross-examination of the
Club’s witness, i.e., Mr. Shekhar Gupta, and pointed out that Mr. Gupta had
infact admitted that the Appellant had been granted provisional membership
after scrutiny of the Guardianship Order. He argued that the Club’s admission
was vital to show that the Club had not issued the identity card to Amoorth and
Aadhyaa based on any misrepresentation or confusion on the part of the
Appellant.
9. Mr. Cama then pointed out that the Trial Court had, after noting
the above admissions by the Club’s witness, categorically held in paragraph 23
of the Impugned Judgement as follows:
“…In this back drop the contention of Defendant that plaintiff mis-
represented or made mis-declaration regarding her relation with Amoorth
and Aachya cannot be accepted…”
10. Mr. Cama then pointed out that despite the above finding, the
Trial Court in paragraph 26 of the Impugned Judgement, in complete
contradiction of the above findings, went on to hold as follows:
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“Despite knowing the relationship, the plaintiff gave incorrect declaration
in membership form. Therefore, the claim of the plaintiff that defendant
club is estopped from denying the right of Master Amoorth and Ms. Aadhya
cannot be accepted for the reasons that the promise was based on false
declaration made by plaintiff in the membership form…”
11. Mr. Cama took pains to point out that not only were the above
findings plainly contradictory, but they were also plainly perverse and rendered
the Impugned Judgement to be set aside on this ground alone.
12. He then took pains to point out that the two letters dated 14 th
September 2018 addressed by the Club to the Appellant, whereby the Club
cancelled the Wards’ membership as dependents of the Appellant, never alleged
any misdeclaration or misrepresentation on the part of the Appellant. On the
contrary, he pointed out that the two letters proceeded on the basis that the
Appellant was the legal guardian of the Wards and that the Club had
inadvertently missed the distinction between “guardianship” and “adoption”
while processing the applications.
13. He then pointed out that the Club had expressly, albeit incorrectly,
stated that the Bye-Laws only permitted “real and adopted children” as
dependents as the reason for cancelling the Wards’ memberships. He submitted
that it is evident that not only was the Club well aware of the Appellants
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relationship with all four before granting the Appellant and all four children
provisional membership, but also that the Club had, vide their letters dated 14 th
September 2018 admitted that there was an error (if any) on the part of the
Club. He then argued that having scrutinised the documents and being well
aware of the facts prior to the granting of membership, the Club was now
estopped from claiming that the Club was not aware or that the Appellant
misrepresented the relation between the Appellant and Amoorth and Aadhyaa.
14. He then argued it was trite law that to constitute a
misrepresentation, there had to be wilful intention to cause confusion, which
in the present case was absent. He submitted that merely using the words ‘son’
and ‘daughter’ on the cover page of the standard format Application Form was
not in any manner dispositive of, or evidence of, any misrepresentation. The
documents annexed with the covering page of the Application Form, clearly
evidenced that Amoorth and Aadhyaa were wards, and admittedly, the Club
had, in fact, scrutinised these documents prior to granting membership. He
further pointed out that the Appellant had, in her cross-examination, clarified
that the reason she used the words ‘son’ and ‘daughter’ was because “… she
never treated Aadhyaa and Amoorth as wards,…” . He thus submitted that there
was no misrepresentation or misdeclaration, and the finding in paragraph 26 of
the Impugned Judgement was therefore perverse and required to be set aside.
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15. Mr. Cama then, with respect to the contention of the Club and the
finding of the Trial Court that since Aadhyaa and Amoorth were wards of the
Appellant, they could not be admitted as ‘dependent children’ of the Appellant
as per the Bye-Laws submitted that the question to be considered was not
whether the Bye-Laws of the Club permitted a Ward to be considered a
Dependent member but whether the Bye-Law precluded or prohibited a Ward
from being treated as a Dependent. He submitted that since there had been no
suppression on the part of the Appellant, the onus lay entirely on the Club to
prove that the Bye-Laws or the AOA of the Club precluded or prohibited a
Ward from being considered as a Dependent.
16. He then pointed out that there was nothing contained in the Bye-
Laws or AOA of the Club that made a distinction between a ward and a
natural-born child, nor was there a bar to a ward being treated on par with a
natural born child. He pointed out that this fact has also been admitted by the
Club’s witness, i.e., Shekhar Gupta, during his cross-examination, where he had
stated, “It is true that the word ‘child’ is not defined in the memorandum,
articles of associations. No distinguish is made between biological child and
ward.” He thus submitted that the Club having admitted that there was no
difference between a biological child and a ward had failed to prove that the
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Bye-Laws or AOA of the Club precluded wards from being considered as
Dependents.
17. Mr. Cama further argued that once the Club had admitted that
there was no prohibition in the Bye-Laws or AOA to a ward being admitted as a
Dependent, the next question that ought to have been considered and addressed
was whether a ward must be treated at par with a natural-born child. He then
placed reliance upon the judgement of the Hon’ble Supreme Court in the case
of Nanak Chand Vs. Chandra Kishore Aggarwal and ors. 1, to submit that that
the term “child” can have at least two distinct meanings, depending on its
context. He explained that when “child” refers to parentage, age is irrelevant.
However, in contexts where “child” implies a connection to age (as he argued
was the case here), it becomes immaterial whether the individual is a natural-
born, biological, adopted, step-child, or even a ward. In such instances, he
contended, the sole crucial factor is that the individual is below the specified
age limit.
18. He thus submitted that in the facts of the present case, the word
‘child’ or ‘children’ was only a term used to describe a male under the age of 21
or a female who is unmarried. The term ‘child’ or ‘children’ in terms of the
Bye-Laws of the Club, therefore, had no relation to parentage and were only
1 (1969) 3 SCC 802
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indicative of the age at which the dependant would become eligible to convert
to a regular member. Hence, it was irrelevant whether the child was a natural-
born or adopted child, or a stepchild, or a ward, and it would be incorrect to
state that the Bye-Laws or articles in any manner intended for the meaning to
be restricted to a biological or adopted child.
19. He then argued that the term ‘child’ is used to refer to a non-
adult, independent of parentage, and has received legislative recognition in
various statutes. He first pointed out from the Right of Children to Free and
Compulsory Education Act, 2009 (“RTE Act“), that ‘child’ had been defined in
that Act to mean a person who is aged between 6 and 14 years² and had
nothing to do with whether they were biological children or otherwise. Relying
on Sections 2 (c)2, 2 (e)3, 2 (g)4 and 35, of the RTE Act, he submitted that the Act
had used the word ‘child’ in the context of both a ‘parent’ and a ‘guardian’ and
hence clearly intended the word ‘child’ to include ‘wards’. He argued that this
clearly evidenced the fact that even the legislature did not contemplate any
qualitative difference between a ‘ward’ and a ‘child’, and that both were to be
2 (c) “child” means a male or female child of the age of six to fourteen years;
3(e) “child belonging to weaker section” means a child belonging to such parent or guardian whose annual income is lower than
the minimum limit specified by the appropriate Govenment, by notification;
4 (g) “guardian” in relation to a child, means a person having the care and custody of that child and includes a natural guardian
or guardian appointed or declared by a Court of a statute;
5 3. Right of child to free and compulsory education – (1) Every child of the age of six to fourteen years, including a child
referred to in clause (d) or (e) of Section 2, shall have the right to free and compulsory education in a neighbourhood school till
the completion of his or her elementary education. …
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treated at par. He further pointed out that Section 2(g) 6 of the RTE Act expressly
included both natural guardians and Court appointed guardians within the
meaning of the term ‘guardian’.
20. He then placed reliance upon Article 51A(k) 7 of the Constitution
of India to submit that even the Constitution equated ‘parents’ at par with
‘guardians’ and ‘children’ at par with ‘wards’. He thus submitted that as per
Article 51(A)k of the Constitution, “parents” and “guardians” were placed on an
equal footing and thus necessarily equated “children” with “wards”. He
submitted that thus it was clear that there was legal parity between a child and
a ward even under the Constitution.
21. Mr. Cama then relied on Section 4(2) 8 of the Guardians and
Wards Act, 1890, to submit that the legislation itself defined ‘guardian’ as a
person having the care of the person of a minor or his property or both.
Therefore, the word ‘dependent’ only means a person who relies upon another
for their sustenance and survival. In the context of the rules of the Club, the
word ‘dependent’ could hence apply equally to adopted children or wards who,
6 supra n4
7 51A. Fundamental duties.–It shall be the duty of every citizen of India– …
(k) who is a parent or guardian to provide opportunities for education to his child or, as the case may be, ward between the age of
six and fourteen years.
8 Definitions.– In this Act, unless there is something repugnant in the subject or context,– …
(2) “guardian” means a person having the care of the person of a minor or of his property, or of both is person and property;
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by court appointment or court fiat, are made the legal dependent of the
member, as it did to a naturally born child who is by birth dependent upon a
member.
22. Mr. Cama then pointed out that on 24 th April 2021, while the
interim orders were in force and while the membership of the Wards was
upheld at the interim stage, Amoorth turned 21 years of age and became
eligible to apply for permanent membership. Accordingly, the Appellant
addressed an email dated 30 th March 2022 to the Club seeking information on
the process to be followed and copies of the necessary forms to be completed
and submitted to convert his dependent membership to a main membership.
However, since the matter was sub-judice, the Club stated that the application
for conversion of dependent membership to main membership could not be
permitted and that the Amoorth could apply for an independent membership if
he so desired.
23. Mr. Cama then took the pains to point out that the Club had,
despite its Rules recognising only real or adopted children as being dependents,
had infact admitted as members those dependents who were neither real or
adopted children of the members of the Club. He pointed out that the
Respondent’s witness, i.e., Mr. Shekhar Gupta, had in cross-examination
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admitted that one Edward Colaco, who was neither the adopted nor natural
born child of a member of the Club, namely, Wing Commander Chris
Chatterjee, was granted membership of the Club, upon attaining the age of 21,
in the capacity of an erstwhile Dependent member of Wing Commander Chris
Chatterjee. Similarly, he pointed out that in the context of one Sameera Patel,
her mother, i.e., Supriya Patel, had married a member, i.e., Shailesh Patel, and
although Sameera Patel was neither the biological daughter nor the adopted
daughter of Shailesh Patel, she was admitted as a member of the Club after the
demise of Shailesh Patel. He thus submitted that it was clear that the Club
always understood that the Bye-Laws did not preclude a child who is not the
natural born or adopted child of a member from being made a dependent
member of the Club.
24. Mr. Cama then submitted that the Trial Court had erroneously
found in favour of the Respondent’s argument that the Wards’ guardianship
ceased by virtue of Section 419 of the Guardians and Wards Act, 1890, upon
Amoorth and Aadhyaa attaining the age of 18 as a factor which would
disentitle the Wards from being construed as Dependants for the purpose of
9 41. Cessation of authority of guardian.– (1) The powers of a guardian of the person cease– (a) by his death, removal or
discharge; (b) by the Court of Wards assuming superintendence of the person of the ward;(c) by the ward ceasing to be a minor;
(d) in the case of a female ward, by her marriage to a husband who is not unfit to be guardian of her person or, if the guardian
was appointed or declared by the Court, by her marriage to a husband who is not, in the opinion of the Court, so unfit; or (e) in
the case of a ward whose father was unfit to be guardian of the person of the ward, by the father ceasing to be so or, if the father
was deemed by the Court to be so unfit, by his ceasing to be so in the opinion of the Court. …
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membership. He submitted that as per Section 3 10 of the Majority Act, 1875,
every person domiciled in India attains the age of majority, which is 18, be it a
natural born child or a ward. He submitted that if the argument of the
Respondent was to be accepted, it would imply that no natural-born child
would ever be eligible to apply for membership after having turned 18,
notwithstanding the fact that under the Club’s rules they continue to be a
dependent member of the club until the age of 21, in the case of a son, or until
they marry, in the case of a daughter.
25. He then pointed out that the application of Edward Colaco, as
referred to above, for conversion of dependent membership to main
membership was only made, and accepted by the Club, after he attained the age
of 21. He thus submitted that the attainment of the age of majority had no
relevance to the Club’s Rules, and the only relevant criteria to be considered a
‘dependent child’ would be attaining the age of 21 or marriage, as the case may
be. Thus, such an argument of the Respondent was illogical and entirely
untenable.
10 3. Age of majority of persons domiciled in India. –(1) Every person domiciled in India shall attain the age of majority on his
completing the age of eighteen years and not before.
(2) In computing the age of any person, the day on which he was born is to be included as a whole day and he shall be deemed to
have attained majority at the beginning of the eighteenth anniversary of that day. …
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26. Basis the above, he submitted that the Impugned Judgement, being
entirely perverse, be quashed and set aside.
Submissions on behalf of the Respondents
27. Mr. Gaurav Sharma, Learned Counsel appearing on behalf of the
Respondents, at the outset pointed out that the Appellant had in the Application
Form made a wilful and deliberate false declaration that Amoorth and Aadhyaa
were her ‘son’ and ‘daughter’, respectively. He submitted that Amoorth and
Aadhyaa were admittedly not the Appellants ‘son’ and ‘daughter’, nor were they
the adopted or stepchildren of the Appellant. He thus submitted that the
declaration made by the Appellant was a false declaration, on the basis of which
the Club addressed the letters dated 14th September 2018 cancelling the
membership of Amoorth and Aadhyaa.
28. He then submitted that by applying for the membership of the
Wards by describing them as the Appellant’s dependents, the Appellant was
trying to unjustifiably enrich herself to the extent of Rs. 3,50,000/- per ward per
year from 2017 till they attained majority, amounting to approximately Rs.
49,00,000/-. This, he submitted, was a clear misrepresentation on the part of the
Appellant and a misuse of the Guardianship Order. He pointed out that one of
the preconditions of the Guardianship Order was that the guardians, including
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the Appellant, would not misuse the said Order. He further argued that the legal
distinction between ‘child’ and ‘ward’ could not be interpreted as synonymous
for the purpose of illegally enriching oneself.
29. He argued that when the Appellant was admitted to the club as a
short-term member, the letter informing her of her admission also required her
to fill out a form with details about her family members for the purposes of
issuing the identity cards. He pointed out that the letter specifically defined
family members as including only spouses, sons under 21, and unmarried
daughters. He submitted that given that the letter left no ambiguity, under no
circumstances could the names of Amoorth and Aadhyaa have been included.
He further submitted that when the Appellant applied for the permanent
membership, the Appellant listed Amoorth and Aadhyaa as ‘son’ and ‘daughter’,
respectively, despite the fact that they were her Wards.
30. He then pointed out that the Application Form required the
Appellant to make a declaration stating that the details submitted by the
Appellant were true and correct and that if the Appellant was found guilty of
misconduct or infringing any of the club rules, the management could take any
action it deemed fit and that such a decision of the Club would be binding upon
the Appellant. He submitted that the Appellant, having made a false declaration,
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the Club was fully justified in terminating the membership of Amoorth and
Aadhyaa. He further submitted that the Appellant’s statement was a fraudulent
misrepresentation and that it was settled law that fraud vitiates even a solemn
instrument, which he submitted was the Application Form in the present case,
and accordingly, the same deserved to be discarded and cancelled.
31. He then submitted that since Amoorth and Aadhyaa had both
attained the age of majority, the Appellant and her brother had ceased to be
their guardians in terms of the Guardianship Order. Accordingly, this present
Appeal has become infructuous for all intents and purposes, and accordingly, it
was not maintainable. He then submitted that Amoorth, being born on 24 th April
2000, was 17 years and 11 months on 21 st March 2018, i.e., the time the
Appellant made the application for permanent membership, and by the time the
Appellant was granted provisional membership on 27 th July 2018, Amoorth had
already become a major and thus could never have enjoyed the benefits of the
Club as a dependant.
32. He further argued that the Trial Court had correctly dismissed the
captioned Suit on the basis that the Wards having attained the age of majority
on 24th April 2018 and 18th February 2022, were no longer ‘dependent
children’ of the Appellant and hence could not continue to enjoy the privileges
of the Club through the Appellant.
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33. He further submitted that the terms and conditions of both
temporary and permanent membership forms, as also the Bye-Laws or
regulations of the Club, do not permit a ‘ward’ of a member to be considered as
their son or daughter, as a ‘ward’ is not the child of either spouse member, and
more particularly when the terms ‘guardian’ and ‘ward’ are well defined under
Section 4(2)11 and Section 4(3)12 respectively, of the Guardians and Wards Act,
1890. Therefore, on a plain reading of the definitions, the Wards, who were also
the niece and nephew of the Appellant, could not have been addressed as
‘daughter’ and ‘son’.
34. He then relied upon Bye-Law No. 7 of the Club, which reads as
follows:
“7. SUCCESSION OF CLUB MEMBERSHIP
Club Membership of a permanent member will devolve to member’s spouse after
the death of the member, Dependent children of the member will be permitted to
utilize all the facilities of the Club, as they were entitled to, during the life time of
the deceased member, subject to the proviso that subscription Levies and revision
thereof will be continued to be paid by the spouse. However the spouse shall have
no voting rights.
Deceased member’s children on attaining 21 years of age shall eligible for
permanent membership as per rules applicable to member’s children.”
11 supra n8
12 4. Definitions.– In this Act, unless there is something repugnant in the subject or context,– … (3) “ward” means a minor for
whose person or property, or both, there is a guardian;
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Basis the above, he submitted that the Bye-Laws clearly envisaged
that the membership of only a permanent member could devolve upon the
spouse and dependent children of such permanent member, that too upon the
death of the permanent member. He thus submitted that the Appellant being
alive and only a provisional member could not seek the benefit of Rule 7. He
thus submitted that Amoorth and Aadhyaa could never have been permitted to
use the Club by taking recourse to Bye-Law No. 7, as they had been permitted to
do by way of the order of injunction dated 6 th March 2019.
35. He then submitted that the Club was not under any contractual
obligation to grant membership to the Wards, who were admittedly the children
of the Appellant’s deceased sister. Furthermore, since the Appellant’s own
membership would cease due to her fraudulent misrepresentation, she couldn’t
enforce any consequential rights even assuming Amoorth and Aadhyaa were
Dependants.
Reasoning:
36. After having heard Learned Counsel for the Parties and having
considered the rival contentions, in my view the following two questions really
arise for determination:
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1) Whether the Appellant made a misrepresentation or false
declaration regarding the Wards’ relationship with the
Appellant; and
2) Whether the Club’s Bye-Laws or AOA specifically preclude or
prohibit a ‘ward’ from being considered a ‘dependent child’ for
the purpose of Club membership.
37. I shall now proceed to deal with and answer the first question as
follows :
A. On the aspect of misrepresentation and false declaration, while
the Trial Court has in paragraph 26 of the Impugned
Judgement, inter alia, held that the Appellant was estopped
from claiming that the Wards were entitled to enjoy the
privileges of her membership, as such membership was granted
on the basis of a false declaration, it is to be noted that the Trial
Court has in paragraph 23 of the Impugned Judgement, after
appreciating the evidence on record, held as follows:
“23. … It has come in the evidence of DW-1 Shekhar that the Plaintiff has
tendered order of City Civil Court appointing plaintiff as a guardian of
Amoorth and Aadhya along with her application. He further admits that
membership to the plaintiff was granted after scrutiny. Therefore from the
evidence on record, it is proved that the plaintiff has recorded all the detailsMugdha 27 of 39
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28 Judgement-FA 1568-24.docin her membership form. The relation of plaintiff with Ms. Amoorth and
Aadhya is of maternal aunt. The plaintiff has categorically admitted the
said fact in her oral evidence. Admittedly master Amoorth and Ms. Aadhya
is not the son and daughter of plaintiff. However, she has recorded
Amoorth and Aadhya as her son and daughter in membership form.
During oral evidence, she explained the reason for recording Amoorth and
Aadhya as her son and daughter and deposed that she never treated
Amoorth and Aadhya as her wards. The said statement of plaintiff that she
never treated Amoorth and Aadhya as her wards that self is not sufficient to
term Amoorth and Aadhya as her son and daughter respectively. The
relation of plaintiff with Amoorth and Aadhya is of of maternal aunt.
However, the DW-1 Shekhar admits that membership of plaintiff was
granted after scrutiny. Admittedly the plaintiff has also tendered order of a
Court appointing her as a guardian of Amoorth and Aadhya before the
defendant club. In this backdrop the contention of defendant that plaintiff
mis-represented or made mis-declaration regarding her relation with
Amoorth and Aachya cannot be accepted. The full name of Amoorth and
Aadhya with their surname is recorded in the member ship form. ”
Thus, despite the fact that the Trial Court, based on the evidence
on record, rendered a detailed finding that there was no
misrepresentation or misdeclaration by the Appellant, the Trial
Court has inexplicably thereafter held that the Appellant made
a false declaration. These contradictory and self-defeating
findings are plainly perverse.
B. A perusal of the evidence on record leaves no manner of doubt
that the Appellant had, in her Application Form, disclosed the
full names of the Wards, which itself indicated they had a
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surname different from the Appellant. Furthermore, the
Appellant had also annexed to the Application Form (i) Her
passport (ii) the birth certificates of all four children, including
Amoorth and Aadhyaa, which clearly name Sheetal Dayanand
Shetty as their mother; (iii) the passports of Amoorth and
Aadhyaa, which also clearly identified Sheetal Shetty and
Dayanand Shetty as their parents; (iv) the death certificate of
the Appellant’s sister, i.e., Sheetal Dayanand Shetty; and (v) the
Order dated 7th April 2017 appointing the Appellant and her
brother as the legal guardians of the Wards. Therefore, in light
of this, merely because the Appellant listed Amoorth and
Aadhyaa as her ‘son’ and ‘daughter’ under “family details”, it
cannot be said that the Appellant made a false declaration. It
would have been an entirely different matter if the Appellant
had not annexed the relevant documents to the Application
Form or had falsely represented that Amoorth and Aadhyaa
were the Appellant’s biological children, which is, however,
admittedly not the case.
C. Crucially, the Club’s witness, Mr. Shekhar Gupta, has in his
cross-examination expressly and fairly admitted that “I had
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seen order of court appointing plaintiff as guardian for
Amoorth and Aadhya casually…” and thereafter admitted that
“Membership was granted after scrutiny…” . Thus, the Club,
having admitted that it was only after scrutiny of the
documents submitted by the Appellant that membership cards
were issued to the Appellant and the children, cannot allege
any false declaration on the part of the Appellant. If any
objection was to have been taken by the Club, it should have
been at the stage of scrutiny and not after membership cards
were issued to the Appellant and the four children. The Club’s
own evidence bears out that the Club was fully aware of and
conscious of the fact that Amoorth and Aadhyaa were not the
biological or adopted children of the Appellant but were the
Appellant’s Wards, and being fully conscious of this fact, the
Club issued them membership cards.
D. Equally crucial is the fact that the letters dated 14th September
2018, by which the Club cancelled the Wards’ membership, do
not mention or proceed on the basis that the Appellant had
made any misdeclaration or misrepresentation. The letter
proceeds solely on the basis that the “distinction between
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adopted/guardianship was lost out and ID cards were issued
inadvertently, which is being rectified now” . Thus, it is clear
and beyond the pale of doubt that the Club had itself
admitted/accepted that (i) there was no misdeclaration on the
part of the Appellant and (ii) the error/omission was on the part
of the Club. Also, the Club’s contention that the AOA/Bye-Laws
only permitted “real and adopted children” as dependents, even
if assumed to be correct, makes clear that the Club’s concern
was in respect of the legal status of the Wards and not qua any
alleged misrepresentation by the Appellant.
E. Though the Appellant has undeniably, in the Application Form,
used the term ‘son’ and ‘daughter’ in family details to describe
Amoorth and Aadhyaa, such description, in my view, in the
facts of the present case, cannot be said to be a wilful
misrepresentation made with the intention of deceiving the
Club. This is because, as already noted above, the Appellant
had (i) admittedly annexed to the Application Form all the
relevant material disclosing that Amoorth and Aadyaa were not
her biological children but were her Wards and (ii) the
Application Form and the documents annexed were scrutinised
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by the Club, after which membership was granted to the
Appellant, and all four children were issued membership cards.
F. Thus, for all the aforesaid reasons, I have no hesitation in
holding that there was no misrepresentation or false
declaration made by the Appellant in the Application Form and
certainly not of the nature that would warrant cancellation of
the membership of the Wards. This is especially so because the
cancellation of the membership was based on the Club’s
interpretation of its Bye-Laws regarding the interpretation of
‘child’ and ‘ward’ and not the finding that there had been any
fraud or misrepresentation by the Appellant.
38. Insofar as the second question is concerned, I find as
follows :
G. The Club’s Bye-Laws do not contain any express provision that
distinguishes between biological children and adopted children,
nor do the Bye-Laws specifically exclude wards from being
considered ‘dependent children’. Crucially in this regard, the
Club’s own witness, Mr. Shekhar Gupta, has admitted in cross-
examination that “It is true that the word ‘child’ is not defined
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33 Judgement-FA 1568-24.docin the memorandum, articles of association. No distinguish is
made between biological child and ward. ” Thus, the Club has
admitted that there is no difference between a ward and a
biological child.
H. In the aforesaid context, i.e., the interpretation of ‘child’ and
‘dependent’ becomes crucial. As rightly argued by Mr. Cama,
the context in which the word ‘child’ is used in the Club’s Bye-
Laws appears to relate to age rather than parentage since male
children continue as dependent members until they attain the
age of 21 and females continue as dependent members until
their marriage. Hence, the purpose of dependent membership is
typically to extend privileges to those who are seemingly
financially reliant on the primary member. Thus it would make
no difference if such dependent children are natural-born
descendants, or are adopted, or step-children, or wards, and the
Appellant’s reliance on Nanak Chand (supra) is apposite.
I. Also, it is essential to note that Section 4(2) of the Guardians
and Wards Act, 1890, specifically defines a ‘guardian’ as a
person “having the care of the person of a minor or his
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property, or both.” This inherently implies a relationship of
dependency. A legal guardian, appointed by a Court, therefore
assumes the responsibility for the ward’s well-being and
upbringing in the very same manner as that of a parent.
J. The Appellant’s reliance upon various legislations like the RTE
Act and Article 51A(k) of the Constitution are instructive and
serve to illustrate the broader legislative trend of equating
‘parents’ and ‘guardians’ in the context of a child’s rights and
welfare. From the RTE Act it can be seen that the Act, while
defining the term ‘guardian’13 uses the term ‘child’ in context of
both a ‘natural guardian’ as well as a ‘Court appointed
guardian’, therefore, not distinguishing between a ‘biological
child’ and a ‘ward’.
K. Similarly Article 51A(k) of the Constitution, also reinforces this
principle by placing the responsibility on both parents and
guardians to provide educational opportunities to their
children or wards, respectively by using “child” and “ward”
interchangeably. The Constitution unequivocally extends the
same fundamental opportunities and safeguards to both natural
13 Section 2(g) of the RTE Act
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born children and wards, and both are intended to be treated at
par, irrespective of their familial or guardianship
arrangements. Thus, in my view and as rightly argued by Mr.
Cama, even the legislature does not contemplate any qualitative
difference between a ‘ward’ and a ‘child’.
L. The term ‘dependent’ in common parlance simply means
relying upon another for sustenance and survival. In the
context of the Club, it signifies a relationship where the
member is responsible for the dependant’s access to the Club
and its facilities. Thus, a ward would also, by virtue of a
guardianship order, be dependent upon the guardian for their
care and upbringing, in the same manner in which a biological
child and/or an adopted child would be. The position would be
no different and would therefore also extend to all aspects of
the child/ward’s life, including recreational and social activities,
facilities, and privileges.
M. In the present case, the Club’s ambivalent and self-serving
interpretation of its own AOA and bye-laws has come to the
fore from the following:
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1) The Club has admittedly granted membership to one Edward
Colaco, who was neither the adopted nor natural-born child of
one Wing Commander Chris Chatterjee, upon his attaining the
age of 21, as an erstwhile dependant member.
2) Similarly, one Ms. Supriya Patel, who was married to one Mr.
Shailesh B. Patel (member) and was admitted as a member after
the death of her husband, listed her daughter, Sameera Patel, as
her dependant daughter, even though her daughter was neither
adopted nor naturally born to the original member and was
granted membership of the Club.
The above makes clear that the Club, when it chooses to, does
recognize individuals who are neither biological nor adopted
children of members and treats them as ‘dependent members’
and/or allows them to transition to full membership.
N. The contention that the Appeal has become infructuous because
the Wards attained the age of majority (18) is also misplaced.
The Club’s own rules specify that a son is eligible to continue as
a dependent member until the age of 21 and a daughter until
marriage. The example of Edward Colaco as noted above,
whose dependent membership was converted to main
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membership after he turned 21, clearly negates the Club’s
contention that attaining 18 years automatically terminates a
dependent status under Club rules. Thus, while the Majority
Act, 1875, defines the age of majority for general legal
purposes, specific organizational rules can define “child” or
“dependent” based on different age thresholds for their internal
purposes.
O. The Club’s reliance upon Bye-Law No. 7 is also in my view
wholly irrelevant to the facts of the present case. This Bye-Law
plainly deals with the devolution of membership after the death
of a permanent member. The issue at hand is in respect of the
entitlement of the Wards’ to the membership of the Club on the
basis that they are her dependents. In my view, the language
“Dependent children of the member will be permitted to utilize
all the facilities of the Club, as they were entitled to, during the
life time of the deceased member ” in Bye-Law No. 7, if
anything, supports the idea that dependent children enjoy
privileges of the member during the member’s lifetime, thus
highlighting that the “dependent children” is what is
paramount.
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Conclusion:
39. Based on the foregoing reasons, I answer the aforesaid questions 14
in the negative. There was no misrepresentation or false declaration by the
Appellant and nor do the Club’s Bye-Laws or AOA explicitly preclude a ‘ward’
from being considered a ‘dependent child’. I thus find that the Trial Court erred
in dismissing the Suit.
40. It is well settled that Courts do not normally interfere in matters
concerning the internal governance/management of Members Club except in
cases of manifest illegality. In the present case, for the reasons indicated above, it
is clear that the Club has acted in a manifestly illegal and perverse manner
which would thus warrant interference by the Court.
41. The Impugned Judgement of the Trial Court dated 5 th July 2024 is
hereby quashed and set aside.
42. The captioned Appeal is allowed.
43. In view of the above, interlocutory applications, if any, shall also
stand disposed of.
14 1. Whether the Appellant made a misrepresentation or false declaration regarding the Wards’ relationship
with the Appellant; and
2. Whether the Club’s Bye-Laws or AOA specifically preclude or prohibit a ‘ward’ from being considered a
‘dependent child’ for the purpose of Club membership
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44. It is declared that Amoorth Dayanand Shetty and Aadhyaa
Dayanand Shetty are entitled to enjoy all rights and privileges of the
membership of the Appellant with the Club as her dependent children, subject
to the Club’s rules regarding age and marital status applicable to all dependent
children.
45. It is clarified that this judgement and the interpretation of the
Club’s AOA and Bye-laws are only in the context of the peculiar facts and
circumstances of the present case and shall therefore not apply as a precedent in
all cases.
(ARIF S. DOCTOR, J.)
After Pronouncement:
46. At the request of the Learned Counsel for the Respondents, the
effect of the order remains stayed for the period of four weeks from today.
(ARIF S. DOCTOR, J.)
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