Sucheta Desmond Rodrigues v. The Bombay Presidency Golf Club Limited

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 relationship with all four before granting the Appellant and all four children provisional membership, but also that the Club had, vide their letters dated 14th 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.

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 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 naturalborn, 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 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 naturalborn 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 nonadult, 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. … 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 n[4] 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; 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 24th 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 30th 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 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. … membership. He submitted that as per Section 310 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. …

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 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, 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 24th April 2000, was 17 years and 11 months on 21st 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 27th 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.

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 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:

11 supra n[8] 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; 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 6th 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:

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:

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 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.

38. Insofar as the second question is concerned, I find as follows:

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 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.

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’.

13 Section 2(g) of the RTE Act 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’.

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.

39. Based on the foregoing reasons, I answer the aforesaid questions14 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 5th 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

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.)