Rohit v Daya
[2022] NZHC 2715
•20 October 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2022-404-000625
[2022] NZHC 2715
UNDER The Declaratory Judgments Act 1908 BETWEEN
ASHOKBHAI ROHIT
Plaintiff
AND
MOHAN DAYA
Defendant
Hearing: 27 September 2022 Appearances:
P A Cowey and D L Bell for Plaintiff
A S Butler, P A Fuscic, A Lemmon and R Nand for Defendant
Judgment:
20 October 2022
JUDGMENT OF VENNING J
This judgment was delivered by me on 20 October 2022 at 11.30 am, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date……………
Solicitors: Parry Field Lawyers, Christchurch
McVeagh Fleming, Auckland
ROHIT v DAYA [2022] NZHC 2715 [20 October 2022]
Introduction
[1] In December 2001, Yogi Divine Society (NZ) Inc (YDSNZ) was incorporated as a Society under the Charitable Trusts Act 1957. Its Constitution provided for the role of Swamiji.
[2] Swamiji was defined in the Constitution to mean Swami Shri Hari Prasaddasji, (Swami Hariprasadji), the Spiritual Head of Shrihari Ashram, Sokhada, Taluka Baroda, India or his successor or any subsequent successor.
[3] Amongst other roles, Swamiji had sole authority to nominate and appoint the President, Vice President, General Secretary, Treasurer, and committee members to the Executive Committee. Swami Hariprasadji appointed the defendant Mohanbhai Daya as the first President of YDSNZ.
[4] Swami Hariprasadji was himself President and a member of the Board of Trustees of the Shri Hari Ashram Public Trust (the Indian Trust) which had been registered in India in June 1978.
[5]Swami Hariprasadji died on 26 July 2021.
[6] The plaintiff Ashokbhai Rohit says that, prior to his death, Swami Hariprasadji had resigned from his position as President of the Indian Trust on 18 October 2018, and Sadhu Premswarupdas Guru Gnanjivandasji (Sadhu Premswaroopdas) had been appointed as President of the Indian Trust in his place.
[7] On 2 December 2021 Sadhu Premswaroopdas signed a Deed of Removal and Appointment purporting to remove Mr Daya as President and others from their positions on the Executive Committee of the YDSNZ. In the same Deed he appointed the plaintiff as President of the YDSNZ and appointed replacement members to the Executive Committee.
[8] Mr Daya and others did not recognise Sadhu Premswaroopdas had the status of Swamiji for the YDSNZ and did not accept the validity of the Deed. They gave notice of a Special General Meeting (SGM) which was held on 12 March 2022. At
the 12 March 2022 meeting Mr Daya was confirmed as President of YDSNZ and the changes Sadhu Premswaroopdas had sought to make in the Deed of 2 December 2021 were rejected. The meeting also resolved to make a number of rule changes to the Constitution of YDSNZ.
[9] These proceedings have followed. Mr Rohit seeks declarations confirming that:
(a)as successor to Swami Hariprasadji as the former President of the Indian Trust, the current President (Sadhu Premswaroopdas) is Swamiji of YDSNZ; and
(b)the Deed of Replacement and Appointment dated 2 December 2021 is valid and effective in appointing Mr Rohit as President and the other current officers of the Executive Committee and removing the defendant and former officers.1
[10]The defendant counterclaims. He seeks a declaration that:
(a)the resolutions adopted at the SGM on 12 March 2022 (including confirmation of his position as President) were validly adopted; and
(b)that the amendments to the Constitution are legally effective; and
(c)the other resolutions adopted at the SGM were validly adopted.
Background
[11] The Worldwide Yogi Divine Society is based in Sokhada, India in the north- western state of Gujarat. The Swaminarayan movement goes back to its founder Lord Swaminarayan (born 1881) whom believers hold as a manifestation of God in the nineteenth century in Gujarat, India. He promised to manifest himself in subsequent generations through individual saints, who, to believers, embody the spirit of Lord
1 The plaintiff also seeks a declaration that a purported deed of 11 October 2021 was invalid, but the defendant does not seek to rely on that document.
Swaminarayan. According to the Yogi Divine Society, H D H Hariprasad Swamiji (born 1934) is the fifth guru-saint in the line of Lord Swaminarayan. The Yogi Divine Society was started in 1971 by H D H Hariprasad Swamiji, who had received initiation as a monk in 1965 from his guru, Yogiji Maharaj, the guru of the BAPS Swaminarayan movement. The Yogi Divine Society is distinct from the other three Swaminarayan organisations, BAPS, GADI and ISSO. Centres of the Yogi Divine Society are located in England, New Zealand, Canada, Berlin, Columbus, Ohio and New Jersey. Centres in India are in Mumbai (Bombay) with the main centre in Vadodara, Gujarat.2
[12] On 12 June 1978 the Indian Trust was registered under the Bombay Public Trust Act 1950. The original trust document appointed Swami Hariprasadji President of the Board of Trustees of the Indian Trust. The Constitution confirmed the Board of Trustees were to be guided by the Advisory Board. Swami Hariprasadji was empowered to determine the composition of the first Advisory Board over which he presided.
[13] Over 23 years later, YDSNZ was incorporated in New Zealand under the provisions of the Charitable Trusts Act 1957.
[14] On 5 October 2018 Swami Hariprasadji tendered his resignation as President of the Indian Trust to the Secretary of the Indian Trust. The letter recorded:3
Presently, I am 85 years of age. I am not in a position to adhered the responsibilities as President in full, as my health remains ill and physical weakness is increasing day by day. I request you to accept this letter of resignation and relieve me from post of the President.
[15] On or about 18 October 2018 the Trust Board of the Indian Trust accepted Swami Hariprasadji’s resignation and appointed Sadhu Premswaroopdas as President of the Indian Trust.4
[16] On 7 October 2019, Mr Dave, the Secretary of the Indian Trust, wrote to Mr Daya as President of the YDSNZ advising of the appointment of Sadhu
2 “Yogi Divine Society/Hindu Swaminarayan Temple and Cultural Centre” (23 February 2004) Harvard University: Pluralism Project Archive <hwpi.havard.edu>.
3 Common Bundle at 97.
4 The defendant does not necessarily accept the validity of that document.
Premswaroopdas as President and trustee of the Indian Trust and asking Mr Daya to “initiate the necessary procedure to include Sadhu Premswaroopdas” as Swamiji in place of Swami Hariprasadji in the Constitution Rules and Regulations of YDSNZ. Mr Daya does not accept that he received the letter. But in any event nothing was done to recognise Sadhu Premswaroopdas as Swamiji of YDSNZ.
[17] On 11 November 2019, the Assistant Charity Commissioner, Gujarat India made an order (change report 180/2019) deleting the name of Swami Hariprasadji as Trustee on the record of the Indian Trust and went on to note:
However to enter the designation of President with the name of [Sadhu Premswaroopdas] who was registered as a trustee on the record of this trust is an internal matter of the trust and so report to enter the designation of President with his name is ordered to be filed.
[18] In early 2020, Swami Hariprasadji visited New Zealand and met with Mr Daya and other members of YDSNZ. As a result of the Covid-19 lockdown Swami Hariprasadji remained in New Zealand for some months. On 5 June 2020, in the presence of Mr Daya and a number of others, including the YDSNZ Secretary, Mr Maisuria, Swami Hariprasadji confirmed that, due to his deteriorating health he would hand over responsibility for YDSNZ Board to Ashokbhai and Shashwat Swami, the Pradeshik (regional) Saints for YDSNZ.5
[19] On 11 October 2021, and following the passing of Swami Hariprasadji, Mr Daya, Mr Maisuria and a number of other members of the original YDSNZ Executive purported to make certain changes to the Constitution of YDSNZ by a deed of that date.6
[20] On 2 December 2021, Sadhu Premswaroopdas signed the Deed purporting to remove Mr Daya, Mr Maisuria and other members of the original Executive Committee. He appointed Mr Rohit as President and also appointed other new members of the Executive Committee.
5 Sworn affidavit of Mr Maisuria, dated 19 August 2022. The plaintiff does not accept the accuracy of that document.
6 Mr Butler confirmed the defendant accepts the changes purported to be made by the Deed were not valid.
[21] Mr Daya and other members of the original Executive Committee did not accept the validity of the 2 December 2021 document. On 25 February 2022 Mr Maisuria gave notice of a SGM to be held on 12 March 2022.
[22] A number of resolutions were passed at the SGM on 12 March 2022. The resolutions provided for a number of rule changes; ratification of the 11 October 2021 Deed; and acknowledgement of Swamiji’s statement of 5 June 2020. In addition, Mr Daya’s role as President and the role of the Pradeshik Saints were confirmed.
[23] The parties have been deadlocked since that time as has the administration of YDSNZ.
Issues
[24] Despite the rather complicated factual background to the parties’ relationship, the questions before the Court are relatively straightforward. They are:
(a)The nature of the relationship between the Indian Trust and YDSNZ and particularly, whether the President of the Indian Trust is also, as a result of holding that position, the successor Swamiji to the YDSNZ Trust; and
(b)Did Swami Hariprasadji appoint Sadhu Premswaroopdas his successor as Swamiji?
(c)If the answer to the above two questions is no, was the SGM of the YDSNZ Trust on 12 March 2022 properly constituted and were the resolutions passed at it valid?
Evidential issues
[25] A significant number of affidavits, some containing voluminous attachments, have been filed in this proceeding. There are a number of factual disputes between the parties as to the validity and/or authenticity of certain documents and the relevance of other evidence.
[26] It is not possible for the Court to resolve the substantial factual disputes between the parties in these declaratory proceedings. However, it is in any event, unnecessary to do so to resolve the main issues identified above.
The position of Swamiji in the YDSNZ
[27]The relevant rules in the YDSNZ’s Constitution are:
41 … “Swamiji” means Swami Shri Hari Prasaddasji, the Spiritual Head of Shrihari Ashram, Sokhada, Taluka Baroda, India or his successor or any subsequent successor. Words importing the singular number include the plural and vice-versa and those importing the masculine include the feminine gender and vice-versa.
5 0 ROLE OF SWAMIJI
5 1 Swami Shri Hariprasaddasji, the Spiritual Head of Shrihari Ashram, Sokhada, Taluka Baroda, India shall have sole authority to nominate and appoint for such time such persons as he thinks fit as President, Vice President, General Secretary, Treasurer, and committee members which shall be called the Executive Committee of the Society. In the absence of such nomination an appointment by Swamiji the Executive Committee shall be elected as set out in paragraph 7.
5.2 All decisions of the Executive Committee or any committee of the Society which is of a major nature in order to be effective shall be submitted to Swamiji for his approval and assent. No action in pursuance thereof shall be taken without the prior approval of the Swamiji. For purposes of clarification “major nature” shall include but not limited to the following rules 8 1 1, 8 1 5, 8 1 6, 8 1 8 and 9 3 2. In the opinion of the Executive Committee if any other matter is considered to be of a major nature it shall be put before the Swamiji for approval.
5 3 The Swamiji, if he thinks fit, will have the powers to veto any resolution or decision of the Executive Committee or any other committee.
5 4If Swamiji retires for any reason whatsoever all his powers reserved by these Rules and Regulations and the Constitution will be exercised by such person or persons or committee as he may appoint before or after his retirement and in such a way he may direct. In the absence of such nomination or appointment the said powers will not be exercised by any other Swamiji of Shrihari Ashram, Sokhada, Taluka Baroda, India or persons, but will vest in the Executive Committee, however due consideration shall be given to the provisions of rule 12 5 herein at all times.
…
The plaintiff’s arguments – Swamiji
[28] There are two propositions that are fundamental to the plaintiff’s case. First, that Sadhu Premswaroopdas was properly appointed as President of the Indian Trust as Swami Hariprasadji’s replacement to that role. Second, that the YDSNZ was part of a “wider movement” under Shrihari Ashram so that the President of the Indian Trust is, by virtue of holding that position, Swamiji for the purposes of YDSNZ.
[29] Mr Cowey submitted the reference to Swamiji in YDSNZ’s Constitution as the Spiritual Head of Shrihari Ashram, Sokhada Taluka Baroda, India is an identifying descriptor rather than establishing a requirement that Swami Hariprasadji’s successor must also fill that role. Mr Cowey noted that it would not be justiciable for the Court to determine who was the spiritual head of Shrihari Ashram in any event.
[30] Mr Cowey argued that the role of Swamiji in YDSNZ was akin to that of a protector under a trust. It was an important check on the powers of the Executive Committee. It also ensured that YDSNZ stayed “in line” with its parent Trust in India.
[31] Mr Cowey submitted that Sadhu Premswaroopdas was the successor to Swami Hariprasadji as the President of the Indian Trust. He had taken over Swami Hariprasadji’s position.7 As Sadhu Premswaroopdas was Swami Hariprasadji’s successor, by the time of Swami Hariprasadji’s visit to New Zealand in 2020, Swami Hariprasadji could not have appointed the Pradeshik Saints as his successor. Mr Cowey argued the most logical interpretation of the position under the YDSNZ Constitution was that the appointment of Sadhu Premswaroopdas as President of the Indian Trust was also an appointment of him as the replacement Swamiji under r 5.4 of the YDS Society’s Constitution. It followed that the Deed of 2 December 2021 executed by Sadhu Premswaroopdas was valid and effective.
7 Mr Cowey referred to the definition of successor in Chambers 21st Century Dictionary of “someone who follows another, especially someone who takes over another's job, position, title, etc”.
Defendant’s position – Swamiji
[32] The defendant puts in issue whether Sadhu Premswaroopdas was validly appointed as President of the Indian Trust. But in any event, the defendant’s position is that Sadhu Premswaroopdas is not Swamiji of YDSNZ. The President of the Indian Trust is a quite separate role. It does not follow that the President of the Indian Trust is Swamiji for the purposes of YDSNZ.
[33] The defendant says that Swami Hariprasadji was still acting as Swamiji for the YDSNZ in 2020 and appointed the Pradeshik Saints to act in his place in respect of YDSNZ matters. He never appointed Sadhu Premswaroopdas his replacement for YDSNZ purposes.
Analysis – position of Swamiji for YDSNZ
[34] Accepting for present purposes that Swami Hariprasadji resigned his position as President of the Indian Trust and that Sadhu Premswaroopdas was appointed President of the Indian Trust, does that mean that Sadhu Premswaroopdas succeeded Swami Hariprasadji as Swamiji for the purposes of the YDSNZ Constitution?
[35] As noted, Mr Cowey argued that the second part of the definition of Swamiji in r 4.1 “the Spiritual Head of Shrihari Ashram, Sokhada, Taluka Baroda, India” merely operated to help identify who Swami Hariprasadji was. In his submission it did not require the successor to Swami Hariprasadji as Swamiji of YDSNZ to also be the Spiritual Head of Shrihari Ashram. He suggested an analogy could be drawn to the interpretation of wills where a beneficiary may be identified by name and a description of a relationship. In such cases the courts have held the individual identified may still take as beneficiary even when the identifying feature is no longer applicable at the date of death.
[36] I do not consider the analogy to be particularly apt. The principle is generally applied where, rather than being identified by name, a person is identified by role or station. For example, in Re Hickman, Hickman v Hickman the Court considered it
applied to “the wife of my grandson”.8 In such a case the Court will interpret the provision as a gift to the person meeting that description as at the date of the will (or if there was no-one meeting the description at that time, the person who met it as at the date of death). The situation in the present case is somewhat different. There could be little doubt who Swami Hariprasadji was when he was appointed as Swamiji in the present case. The reference to him as the Spiritual Head of Shrihari Ashram, Sokhada, Taluka Baroda, India or his successor or any subsequent successor could, on one reading, suggest that the successor would also be the spiritual head of Shrihari Ashram. However, r 5.4 of YDSNZ which provides for Swamiji to appoint his successor does not limit the appointment powers in that way.
[37] I return to the principal issue. In my judgment there are a number of factors which suggest that the appointment of Sadhu Premswaroopdas as President of the Indian Trust did not lead to him being Swami Hariprasadji’s successor as Swamiji for the purposes of YDSNZ.
[38] Fundamentally, there is a difference between the roles Swami Hariprasadji held as President of the Indian Trust and as Swamiji of the YDSNZ Society. The role of President under the Indian Trust was a “hands-on” role as President of the Board of Trustees under the Constitution of YDSNZ. The role of Swamiji under YDSNZ is quite a different role. It is to provide direction and guidance, but not necessarily to engage in the day-to-day management of the Trust. The Swamiji was not President of YDSNZ. As noted, under the YDSNZ Constitution the defendant, Mr Daya, was appointed the initial President.
[39] While r 5.4 provides for the Swamji to retire and appoint a successor, that is plainly as his successor as Swamiji of the YDSNZ rather than being related in any way to who may hold the presidency of the Indian Trust. The rule also expressly requires Swami Hariprasadji to appoint his successor.
[40] The intent of r 5.4 seems clear. It is for Swami Hariprasadji to appoint such person or person(s) to exercise his powers as Swamiji for the YDSNZ but in the event he does not do so, the Executive Committee are to have all the former powers of the
8 Re Hickman, Hickman v Hickman [1948] Ch 624 (Ch).
Swamiji under YDSNZ. Importantly, the rule expressly provides no other Swamiji of India is to exercise the powers but they will vest in the Executive Committee. In my judgment that is further evidence that it was intended YDSNZ would be independent of the Indian Trust and answers Mr Cowey’s submissions that the role was intended to keep YDSNZ “in line” with the Indian Trust.
[41] Mr Cowey submitted that there would be a hiatus if Sadhu Premswaroopdas was not accepted as a replacement for Swami Hariprasadji as Swamiji for the purposes of YDSNZ. He argued that would mean Swami Hariprasadji had died without appointing a successor. If that was the case the Court would be required to engage in determining who the spiritual successor of Shari Ashram was, which would not be justiciable.
[42] I agree that it is not for this Court to determine who the successor to Swami Hariprasadji may be as the spiritual head of Shrihari Ashram. Such religious and spiritual issues are not justiciable.9 However, it is unnecessary for the Court to engage with the issue of who may be the spiritual head of Shrihari Ashram to deal with the matter presently before the Court. Rule 5.4 of YDSNZ’s Constitution provides for the situation.
[43] There is evidence to support the defendant’s case that Swami Hariprasadji appointed the Saints as his successor to have the role of Swamiji and provide guidance to the YDSNZ. Mr Cowey challenged the admissibility of that evidence. As he noted, the Saints are itinerant preachers and are not suited to hold the permanent role of Swamiji. Further, apart from Mr Maisuria’s note, there was no other record of such appointment. Next, the Saints took no action to step into the role of Swamiji.
[44] But even accepting that the Saints were not appointed as Swamiji, that does not mean the President of the Indian Trust assumes the role of Swamiji. Rather, there would be a vacancy in the role of Swamiji for YDSNZ on Swami Hariprasadji’s passing. If there was a vacancy and the position is that Swami Hariprasadji passed without appointing a successor, then the rule provides:
9 Khyentse v Hope [2007] 1 NZLR 645 (CA).
[I]n the absence of such nomination or appointment the said powers will not be exercised by any other Swamiji of Shrihari Ashram, Sokhada, Taluka Baroda, India, or persons, but will vest in the Executive Committee, however due consideration shall be given to the provisions of rule 12.5 herein at all times.
[45] Rule 12.5 confirms the importance of the foundation members (the first nineteen (19) Executive Committee members which include Mr Daya, the President, and Mr Maisuria, the Secretary):
Foundation Members
12 5 1 The main responsibility of the foundation members shall be to provide guidance and direction towards the running of the Society’s affairs and the Executive Committee in the absence of Swamiji shall always seek the guidance and direction of the foundation members.
[46] There is no hiatus if Swami Hariprasadji died without appointing a successor. Rule 5.4 provides in that case for the powers of Swamiji to vest in the Executive Committee.
[47] For the above reasons I reject the underlying premise of the plaintiff’s case on this point which is that, as Swami Hariprasadji is the President of the Indian Trust, he also holds the role of Swamiji for the purposes of the YDSNZ Society. The President of the Indian Trust is not, by reason of holding that position, also the Swamiji of YDSNZ. On a related point, I note that the Indian Trust Deed confines the activities of the Trust to those in India only.
[48] I also find that the plaintiff cannot establish that Swami Hariprasadji appointed Sadhu Premswaroopdas as his successor to the position of Swamiji for the purpose of the YDSNZ.
[49] There is no evidence that Swami Hariprasadji appointed Sadhu Premswaroopdas to succeed him as Swamiji of YDSNZ. Swami Hariprasadji himself does not appear to have considered that Sadhu Premswaroopdas had replaced him as Swamiji for the purposes of YDSNZ. The reason Swami Hariprasadji gave for standing down as President of the Indian Trust in October 2018 was his age and health and that he was not able to carry on in that role. Again, that is consistent with the differences in the two roles and the additional demands of the Presidency of the Indian
Trust. Despite that, he still felt able to travel to New Zealand in early 2020 to meet with, engage with, and provide guidance to the members of YDSNZ. The purpose of such meetings, and his action in New Zealand were entirely consistent with him still holding the position of Swamiji for the purposes of YDSNZ at that time.
[50] There is no mention or record of Swami Hariprasadji at that time (in 2020) or indeed at any other time suggesting that he had appointed Sadhu Premswaroopdas to hold the role of Swamiji for YDSNZ.
[51] Mr Cowey referred to the letter of 7 October 2019 from Mr Dave (which was not responded to) as evidence of the intention that Sadhu Premswaroopdas would be Swamiji of the YDSNZ. Mr Cowey submitted that Swami Hariprasadji [the former President] had advised Mr Daya to update the New Zealand Constitution. But Mr Dave’s evidence at [15] of his affidavit does not go that far. At best it is ambiguous. There is also a conflict in the evidence about whether that letter was received by the defendant Mr Daya. It seems unlikely that, if it was received by Mr Daya, he would not have responded to it in some way given that neither he nor other members of the then Executive Committee accepted the position outlined in the letter. But in any event, the letter was written by Mr Dave, the Secretary of the Indian Trust, not Swami Hariprasadji, so it could not be a valid appointment for the purposes of r 5.4. Further, even in its terms, it seems to rely on the fact Sadhu Premswaroopdas was President of the Indian Trust as the basis for his appointment as Swamiji. It does not say that Swami Hariprasadji had appointed Sadhu Premswaroopdas as Swamiji.
[52] I note that the defendant puts in issue whether Sadhu Premswaroopdas was actually validly appointed as the President of the Indian Trust. Mr Butler suggested that there was insufficient evidence for the Court to be satisfied that he had been properly appointed as President of the Indian Trust.
[53] Mr Cowey sought to place reliance on the change report 180/19 and what he characterised as High Court rulings from India as confirming Sadhu Premswaroopdas’ appointment as President. However, as noted, the change report 180/19 did not directly confirm Sadhu Premswaroopdas as the President. It left that open. Nor did the High Court of Gujarat decision counsel referred to. In its ruling directing
mediation the High Court simply recorded that there was an objection to Swami Hariprasadji as President but no legal challenge had been made so it was not a matter for the mediation (unless both parties agreed)
[54] There is evidence of other organisations in India where Swami Hariprasadji had a role. There is no suggestion that he was replaced by Sadhu Premswaroopdas to those roles, just because Sadhu Premswaroopdas was President of the Indian Trust. There is also some documentation which suggests that other YDS throughout the world have not accepted Sadhu Premswaroopdas as a replacement for Swami Hariprasadji.10
[55] However, I acknowledge that the plaintiff challenges that material. Ultimately it is unnecessary to consider whether Sadhu Premswaroopdas was correctly appointed the President of the Indian Trust any further. Even if he is, that does not, by reason of him holding that position, make him Swamiji of YDSNZ.
[56] For the above reasons, the Deed of 2 December 2021 in which Sadhu Premswaroopdas purported to remove Mr Daya as President and replace him and other members of the Executive Committee is invalid and of no effect. He was not the Swamiji of YDSNZ and had no authority under YDSNZ to purport to remove Mr Daya and the Executive.
[57] That leaves the last substantive issue, which is the defendant’s application for declarations as to the validity of the 12 March 2022 meeting and resolutions.
Relevant rules – 12 March SGM
[58]The relevant rules in relation to the 12 March SGM are:
9 1 The Rules or any of the “including the name of the Society” may be altered added to or rescinded by resolution passed at a duly constituted General Meeting of the Society by a majority of not less than three fourths of the members present in person or by proxy and entitled to vote. Notwithstanding anything in these Rules notice of the General Meeting at which the alteration, addition or rescission is to be considered shall be given to all members at least 14 days prior to the
10 YDS Australia, YDS United Kingdom, YDS Canada, YDS New Jersey.
date of the meeting. The notice of meeting shall describe the general nature of the alteration, addition or rescission.
9 2 No addition to or alteration or rescission of the Rules shall be approved if it affects the charitable objects, the personal benefit clause or the winding up clause.
…
12 1 The Society shall hold an Annual General Meeting at least once in every year and not more than 15 months shall lapse between two successive annual general meetings. At least 14 days notice specifying the time, place the day and hour shall be given to every member of the Society.
12 2 The Society shall hold an Annual General Meeting at least once in every year and not more than 15 months shall lapse between two successive annual general meetings. At least 14 days notice specifying the time, place the day and hour shall be given to every member of the Society.
The plaintiff’s arguments – the 12 March SGM
[59] Ms Bell argued this aspect of the case for the plaintiff. She submitted that the SGM on 12 March 2022 was invalid and the meeting cannot have ratified the purported deed or made the proposed rule changes for four principal reasons:
(a)the meeting did not have the quorum of members present required by the rules so the resolutions passed were of no legal effect;
(b)the meeting on 12 March 2022 was not validly called and therefore had no legal effect;
(c)some of the purported changes could not be made by members of the Society as they were in breach of r 9.2; and
(d)there was no evidence that the votes relied on by the defendant were cast by individuals who were entitled to vote and who were fully informed of the impact of the changes being voted on.
[60] Ms Bell drew the Court’s attention to r 12.6 of the Constitution which provided for a quorum at an AGM or SGM:
12 6 The quorum of Annual General Meeting or a Special General Meeting of the Society will be three quarters (3/4) of the total number of the members in the register, present in person, whichever is less.
[61] On her calculation, in the present case a quorum would have been 293 members (three-quarters of the 390).
[62] Ms Bell submitted that, subject to any express contrary provision in the Constitution under general common law rules a member is not present at a meeting when represented by the holder of a proxy.11 She relied on the decision of Ronald Young J in Body Corporate 199883 v Clarke Family Associates Ltd where the Judge considered if the voting power included proxy votes all meetings would require only one person.12 He refused to accept that a proxy could count towards the quorum.
[63] Ms Bell then referred to r 9.1, and submitted that as the notice of meeting had been issued by someone without authority, the meeting was effectively invalid. General meetings could only be called by the Executive Committee: rr 12.1 and 12.2. Mr Maisuria had no authority as he had been removed from his position as Secretary. There was no power in ordinary members to call a meeting.
[64] Ms Bell then submitted that r 9.2 was clear in its terms and confirmed the Society’s charitable objects could not be changed or varied even by a three-quarter majority of members, noting the House of Lords’ decision in General Assembly of the Free Church of Scotland v Lord Overtoun.13
[65] Ms Bell then argued that the resolution which purported to expand the powers of the Swamiji in the following way:
That the executive committee be empowered to make changes to the constitution and the rules of the Society including but not limited to, keeping all powers and control of the Society in the New Zealand executive committee with the provision of the Pradeshik Saints to provide guidance and further make any changes to the structure of the Society, either under the Charitable Trust Act 1957 or the Incorporated Societies Act 1908.
11 Mark von Dadelszen Members’ Meetings: All you need to know about New Zealand meetings (3rd ed, LexisNexis, Wellington, 2012) at [6.10.11].
12 Body Corporate 199883 v Clarke Family Associates Ltd (2005) 5 NZ ConvC 194,087 (HC).
13 General Assembly of the Free Church of Scotland v Lord Overtoun [1904] AC 515 (HL).
went too far. Further, that resolution had not been included in the notice of the meeting.
[66] Next, Ms Bell submitted that the defendant had provided no evidence of who gave proxies and that the proxies indicated support for the proposed resolutions. She noted that Mr Daya in his evidence had referred to a one year old child as a member of the Society.
[67] Finally she submitted that members were not fully informed of the meeting and there was no safe evidence that the majority of the members supported the changes. She noted Mr Rohit had given evidence many members of the Society have issues understanding English and the material provided ahead of the meeting was deficient and that it was not clear the sole of the Swamiji’s successor was being deleted. It appeared the Pradeshik Saints were being added in. No explanation was given that the effect would be to sever YDSNA from Shri Hari Ashram.
[68] For those reasons she submitted the resolutions passed at the meeting on 12 March were invalid and the Court should not confirm them.
Defendant’s position – 12 March SGM
[69] Mr Butler confirmed that the defendant accepts the purported changes in the deed of 11 October 2021 are not effective. The defendant does not rely on that deed itself, although the changes were confirmed at the SGM of 12 March. The meeting of the members of the YDSNZ called for 12 March 2022 passed resolutions in largely identical terms to those approved on 11 October 2021 including changes to the rules.
[70] As to the resolutions at the SGM, the defendant says r 12.6 was incomplete and unworkable. Mr Butler submitted the rule was meaningless in its terms and the Court should put it to one side and find there was no requirement for a quorum.
[71] Proper notice of the SGM was given because the purported removal of the executive members by Sadhu Premswaroopdas was itself invalid.
[72] Next, the amendments did not in any material way affect the charitable objects of YDS. Further, members of the Executive Committee can amend the Constitution and even change the definition of Swamiji if they wished to.
Analysis – the 12 March SGM
Quorum
[73] The minutes of the SGM recorded that out of 390 members, 250 proxies were received and 114 members physically met throughout New Zealand with approximately 26 members by zoom connection.
[74] I consider there is force in Mr Butler’s submission that r 12.6 is fundamentally defective. As it reads, it is difficult to make sense of it. For something to be less it must be smaller (typically in a quantifiable amount) by comparison to something else.
[75] I note that the Constitution of the Yogi Divine Society in Bombay has a similar rule which provides:
The quorum of Annual General Meeting or a special general meeting of the society will be 51 or 1/10th of the total number of the members in the register, present in person, which ever is less.
[76] It seems that r 12.6 was intended to achieve something similar but it left out the comparator to the requirement for three-quarters of the members. Without the comparator the rule cannot be given effect to in any meaningful way. Ms Bell suggested that the reference to “whichever is less” could perhaps be a reference to rounding off of three-quarters of the total number of the members present in person, so that three-quarters of 390 would be 292 rounded down from the arithmetical 292.5 calculation. With respect, I consider that to be contrived. I agree that r 12.6 is fundamentally defective and cannot be given effect to. As a result, there is no quorum requirement.
[77] As an aside, I note that while Ms Bell also relied on the case of Body Corporate 199883 v Clarke Family Associates Ltd as authority for the proposition that proxy votes could not count towards a quorum, in Body Corporate 348047 v Strata Title
Administration Ltd Lang J declined to follow Ronald Young J’s reasoning.14 Lang J accepted that proxy votes could, in some cases, count towards a quorum. Ms Bell also relied on the general proposition that “unless expressly permitted by an organisation’s constitution, members must be present at a meeting in person to exercise their vote and cannot vote by proxy”. However, r 9.1 expressly provides for members to vote by proxy. Also, in the present case the nature of the YDSNZ membership must inform the requirement for a quorum in any event. The members are spread throughout New Zealand.
[78] In the absence of a quorum requirement, a quorum is achieved by a majority of members.15 That requirement was clearly satisfied. In the present case, the total voting rights present exceeded 95 per cent.
[79] The interpretation of r 9.1 is clear. The required majority to alter rules is three- fourths of the members either present in person or by proxy. On the information before the Court that was achieved at the meeting.
Notice of meeting
[80] Ms Bell accepted that, in the event the Court found that the actions of Sadhu Premswaroopdas seeking to set aside the President and Secretary were ineffective (as the Court has found) then the notice of the meeting was on its face valid, as it had been issued by Mr Maisuria, the Secretary of YDSNZ. That answers the plaintiff’s objection to the validity of the notice of meeting.
Change in the rules
[81] In Bath v Singh this Court found there was no ability to entrench rules given the contractual nature of the relationship between the Society and its members.16
14 Body Corporate 348047 v Strata Title Administration Ltd HC Auckland CIV-2011-404-003581, 29 June 2011.
15 Mark von Dadelszen Law of Societies in New Zealand: Unincorporated, Incorporated, and Charitable (3rd ed, LexisNexis, Wellington, 2013) at [8.3.8], citing McColl v Horne & Young (1888) 6 NZLR 590 (SC); and The Mayor, Constables, and Co of Merchants of The Staple of England v The Governor and Co of the Bank of England (1887) 21 QBD 160 (CA).
16 Bath v Singh [2012] NZAR 50 (HC) at [61].
[82] The Overtoun decision17 confirmed that where property of a charitable body was held on trust for charitable (religious) objects, the majority could not alienate that property to other objects. But that is not what the relevant resolution purported to do in the present case.
[83] The rules that were changed in the present case were quite different to the situation in Overtoun. While the objects were amended the attached comparison shows that to the extent the charitable objects were amended, they were amended to clarify or expand them but they still remained within the overall context of the charitable aims of the Society and consistent with those aims.
[84] I agree with the submission for the defendant that the amendments to the rules simply elaborated on the charitable objects of YDSNZ.
[85] As to Ms Bell’s suggestion the formalities of the meeting had not been complied with, minor procedural irregularities should not invalidate a decision of members of a society where their intention is clear.18
[86] Further, generally speaking, the Court will not intervene when the vote of the majority could rectify any irregularity in the proceedings.19 In Swan v Massey University Students’ Association Henry J noted:
In my judgment the Court ought not to interfere with the clearly expressed will of the majority of the members merely because the method of ascertaining that majority was not strictly complied with. … In Macdougall v Gardiner (1875) 1 Ch D 13, 25, Mellish LJ said:
"In my opinion, if the thing complained of is a thing which in substance the majority of the company are entitled to do, or if something has been done irregularly which the majority of the company are entitled to do regularly, or if something has been done illegally which the majority of the company are entitled to do legally, there can be no use in having a litigation about it, the ultimate end of which is only that a meeting has to be called, and then ultimately the majority gets its wishes. Is it not better that the rule should be adhered to that if it is a thing which the majority are the masters of, the majority in substance shall be entitled to have
17 General Assembly of the Free Church of Scotland v Lord Overtoun, above n 13.
18 Antunovich v Dalmatinsko Kulturno Drustvo Incorporated (Dalmation Cultural Society) [2001] NZAR 229 (HC).
19 Swan v Massey University Students’ Association [1972] NZLR 985 (SC); and Turner v Pickering
[1976] 1 NZLR 129 (SC) at 141.
their will followed? If it is a matter of that nature, it only comes to this, that the majority are the only persons who can complain that a thing which they are entitled to do has been done irregularly; and that, as I understand it, is what has been decided by the cases of Mozley v Alston 1 Ph 790 and Foss v Harbottle 2 Hare 461. In my opinion that is the rule that is to be maintained. Of course if the majority are abusing their powers, and are depriving the minority of their rights, that is an entirely different thing."
[87] I consider the above principles apply to validate the resolutions passed by the members of the YDSNZ at its meeting of 12 March 2022.
Result/orders
[88]The plaintiff’s application for declarations is dismissed.
[89] The defendant’s application for declarations is granted. There will be declarations that:
(a)the amendments to the 2001 YDSNZ Constitution as set out in the attached comparative schedule rr 2.1 to 2.10 were legally effective; and
(b)the other resolutions, being numbers 1 and 3–6 in the attached comparative schedule were validly adopted.
Costs
[90] The defendant is entitled to costs. I fix costs on a 2B basis and allow for second counsel. I note that although there are a substantial number of affidavits filed, a number of them were not of particular assistance to the Court. I decline to allow any extended time for their preparation.
Venning J
Comparison of YDS NZ Constitution, Deed of Variation of Trust, and Resolutions of the Special General Meeting
Yogi Divine Society (NZ) Inc. Constitution and Rules and Regulations 24 July 2001 Resolutions of Special General Meeting 12 March 2022
(per Wording of "Annexure 1" to Notice of SGM / Proxy Form)
Rule Resolution 1 Ratification of Special Meeting Minutes dated 22 September 2021. 2 Alteration of Rules: Aims and Objectives
3.1.1
To establish and organise an educational institution with a technical bias and a modern nursing home and health centres, in order to fetch up the chief enemies of mankind, viz ignorance, poverty and disease
2.1
To establish and organise an educational institution with a technical bias and a modern nursing home and health centers, in order to fetch up the chief enemies of mankind, viz. ignorance, poverty and disease. To further establish and organize a community based educational institute aimed towards empowering the youth thereby influencing reductions of antisocial behaviors in society.
3.1.4 To establish centres of physical culture, sports and volunteer organisations for including and promoting the spirit of discipline, co- operation and selfless service to others and to undertake activities for promotion of mental, health and bodily perfection, 2.2 To establish centres of physical culture, sports and volunteer organisations for including and promoting the spirit of discipline, co- operation and selfless service to others and to undertake activities for promotion of mental, health and bodily perfection. To further promote mental health and physical wellness through providing education and resources such as food packets and any other method at the Society's discretion. 3.1.6 To build a community hall in Auckland and other places in New Zealand 2.3 To build a community hall in Auckland and other places in New Zealand to support community welfare and additionally providing assistance to the Civil Defence Department. 3.1.13 To start and run 'Bhojanlays' meaning Food bands for sadhus, (saint) devotees and any needy persons 2.4 To start and run "Bhojanlays" meaning food kitchens for Sadhus (saints), devotees and any persons struck by hardship and misfortune. Interpretation
4.1
In these Rules and Regulation unless there be something in the subject or context inconsistent therewith "the Society" means the above-named Society "The Act" means the Charitable Trusts Act 1957 "Month means an English calendar month "Financial Year" in relation to the Society means the year commencing on the 1st April and ending on 31st March "Swamiji" means Swami Shri Hari Prasaddasji, the Spiritual Head of Shrihari Ashram, Sokhada, Taluka Baroda, India or his successor or any subsequent successor Words importing the singular number include the plural and vice-versa and those importing the masculine include the feminine gender and vice- versa
2.5
In these Rules and Regulations of the Trust Deed which is also referred to as "the Constitution" and "Rules and Regulations" unless there is something in the subject or context inconsistent therewith:
· "The Society" means the abovenamed Trust;
· "The Act" means the Charitable Trusts Act 1957 or any successor Legislative Instrument;
· "Month" means an English calendar month;
· "Financial Year" in relation to the Society means the year commencing on 1st April and ending on 31st March;
· "Swamji" means Swami Shri Hari Prasaddasji, the Spiritual Head of Shri Hari Ashram, Sokhada, Taluka Baroda, India or his appointed Pradeshik Saints or their successors or subsequent successor/s appointed by the Pradeshik Saints jointly;
· "Pradeshik Saints" means Regional Spiritual Leaders, namely, Ashokkumar Bhulabhai Patel and Shasvatswaroopdas Guruhariprasaddas Sadhu.
· "Local President" means the locally appointed Society President; and
· "Local Secretary" means the locally appointed Society Secretary.
Wordings importing the singular number include the plural and vice versa and those importing the masculine include the feminine gender vice versa.
On 26 July 2021 Swamiji passed away and left his "Nashwar Deh" to permanently reside in Akshardam. However, prior to his demise, he had appointed the Pradeshik Saints. Therefore, all references to Swamiji in the Constitution is now a direct reference to the Pradeshik Saints Ashokkumar Bhulabhai Patel and Shasvatswaroopdas Guruhariprasaddas Sadhu.
All decisions made by the Pradeshik Saints shall be made jointly. Notwithstanding anything contrary herein, in the absence of the Pradeshik Saints, no other person, entity, or institution of Shri Hari Ashram, Sokhada, Taluka Baroda, India shall interfere in the affairs and decision making of the Society. Except for the Pradeshik Saints, the powers of Swamiji shall not be exercised by any other person, entity or institution of Shri Hari Ashram, Sokhada, Taluka Baroda, India.
Role of Swamiji
5.4
If Swamiji retires for any reason whatsoever all his powers reserved by these Rules and Regulations and the Constitution will be exercised by such person or persons or committee as he may appoint before or after his retirement and in such a way he may direct In the absence of such nomination or appointment the said powers will not be exercised by any other Swamiji of Shrihari Ashram, Sokhada, Taluka Baroda, India or persons, but will vest in the Executive Committee, however due consideration shall be given to the provisions of rule 12 5 herein at all times
2.6
If Swamiji retires for any reason whatsoever all his powers reserved by these Rules and Regulations and the Constitution will be exercised by the Pradeshik Saints he may appoint before or after his retirement and in such a way he may direct. In the absence of the Pradeshik Saints the said powers will not be exercised by any other Swamiji or Pradeshik Saint or any other person, entity or institution of Shri Hari Ashram, Sokhada, Taluka Baroda, India, but will vest in the Executive Committee, however due consideration shall be given to the provisions of Rule 12.5 herein at all times.
The Executive and Management
6.1.2
The nomination and appointment of the Vice President, General Secretary, Assistant Secretary and Treasurer
The office of the General Secretary and the Treasurer may be held by one or two persons as Swamiji thinks fit They will hold the said offices until they are replaced by other persons nominated by Swamiji The President, Vice President, the General Secretary, Assistant Secretary and the Treasurer will form part of the Executive Committee
NANUBHAI NATHU of 43 Ranfurly Road, Epsom, Auckland, New Zealand will be the first Vice President,
RAMESHBHAI MAISURIA of 26 Simmons Avenue, Mt Roskill, Auckland, New Zealand the first General Secretary,
ASHOKBHAI ROHIT of 144 New Brighton Road, Shirley, Christchurch, New Zealand will be the first Assistant Secretary, and
HIMANSHUBHAI PATEL of 10 Hobson Drive, Panmure, Auckland, New Zealand will be the first Treasurer
2.7
The nomination and appointment of the Vice President, General Secretary, Assistant Secretary and Treasurer
The office of the Vice President, General and the Treasurer may be held by two persons as Swamiji thinks fit. They will hold the said offices until they are replaced by other persons nominated by Swamiji. The President, Vice President, the General Secretary, Assistant Secretary and the Treasurer will form part of the Executive Committee.
NANUBHAI NATHU of 43 Ranfurly Road, Epsom, Auckland, New Zealand will be the first appointed Vice President;
RAMESHBHAI MAISURIA of 460 Don Buck Road, Massey, Auckland, New Zealand will be the first appointed General Secretary
GOPINBHAI GANDHI of 41 Travis Country Drive, Burwood, Christchurch, New Zealand will be the Second appointed Assistant Secretary
ASHOKBHAI ROHIT of 144 New Brighton Road, Shirley, Christchurch, New Zealand was the first Secretary and his office has been vacated as a result of having ceased office by the decision of the executive committee at the General Meeting adopting these variations.
HIMANSHUBHAI PATEL of 10 Hobson Drive, Panmure, Auckland, New Zealand will be the first appointed Treasurer
Any 3 Members of the Executive Committee can sign documents that would be binding upon the Society 6.1.3 The appointment of committee members 2.8 Rule 6.1.3 is rescinded in its entirety. JAGDISHBHAI PATEL of 31 Township Road, Waitakere, Auckland, New Zealand
A list of current committee members will be managed by the Local Secretary and the Charities Register will be updated on a "as needed"
basis to reflect any changes to the committee.
GIRISHBHAI PATEL of 841 Mt Eden Road, Mt Eden, Auckland, New Zealand
ATULBHAI PATEL of 235 Titirangi Road, Titirangi, Auckland, New Zealand
DIPAKBHAI KALIDAS 283 Burwood Road, Burwood, Christchurch, New Zealand
NARESHBHAI MAISURIA of 139 Selwyn Street, Onehunga, Auckland, New Zealand
HARIVADANBHAI PATEL of 17 Windermere Crescent, Blockhouse Bay, Auckland, New Zealand
VINUBHAI MAGAN of 14 Sunnyside Road, Sunnyvale, Auckland, New Zealand
SHANTILALBHAI PATEL of 2 Halsey Drive, Lynfield, Auckland, New Zealand
BALVANTBHAI MAGAN of 14 Namata Road, Onehunga, Auckland, New Zealand
BIPINBHAI ROHIT of 517 Great North Road, Grey Lynn, Auckland, New Zealand
BALDEVBHAI GOVIND of 9 Arran Street, Avondale, Auckland, New Zealand
PRAKASHBHAI DHANA of 21 Akaroa Drive, Maupuia, Wellington
HEMANTBHAI RAMA of 60 Kaikoura Street, Wellington, and
PRAFULBHAI GOVIND SABARIA of P O Box 5559, Lambton Quay,
Wellington
shall be the first fourteen (14) committee members nominated and appointed by Swamiji and they will hold office until they are replaced by Swamiji or any other person or persons nominated and appointed by Swamiji
Branches
11.5
A member of any branch will not ipso facto a member of the Society but will be eligible for such membership according to the membership provisions of Rule 10 hereof
2.9
A member of any branch will not automatically by right of membership to that branch, become a member of the Society but will be eligible for such membership according to the membership provisions of Rule 10.
Meeting
12.5
12.5.1
Foundation Members
The main responsibility of the foundation members shall be to provide guidance and direction towards the running of the Society's affairs and the Executive Committee in the absence of Swamiji shall always seek the guidance and direction of the
foundation members
2.10
The main responsibility of the foundation members shall be to provide guidance and direction towards the running of the Society's affairs and the Executive Committee in the absence of Swamiji shall always seek guidance of the Local President and Local Secretary with suggestions from the foundation members provided one (1) or more are alive and are of sound mental capacity.
AVL Counterpart Signing
2.11
Addition of Counterpart signing of Constitution through AVL:
This Constitution may be executed in one or more counterpart copies, which when read together, will constitute one and the same instrument. Any facsimile copy or scanned email copy of this Constitution (including any facsimile copy or scanned email copy of any document evidencing the execution of this Constitution by parties) maybe relied upon as though it were an original copy and the witnessing of the execution of this Constitution may be carried out by way off audiovisual link.
3 Ratification of Deed of Variation of Trust Deed dated 11 October 2021 including ratification of the new wording per annexure 1, rule 6.1.2 with respect to Ashok Rohit cessation of office. 4 Acknowledge the statement made by Swamiji on 5 June 2020. 5 The members of the society only accept Mohan Daya as the president of Yogi Divine Society (NZ) Inc. And do not accept Sadhu Premswaroopdas Gyanjivandasji as the Spiritual leader or successor or president of ShriHari Ashram, SOKHADA, taluka Baroda or Yds India.
And further we do not accept any appointment of any members for changes Premswaroopdas Gyanjivandasji is trying to Action for YDS NZ Inc.
6 That the executive committee be empowered to make changes to the constitution and rules of the Society including but not limited to, keeping all powers and control of the Society in the New Zealand executive committee with the provision of the Pradeshik Saints to provide guidance and further make any changes to the structure of the Society, either under the Charitable Trusts Act 1957 or the Incorporated Societies Act 1908.
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