Madras High Court
Sakila Begum vs Nagaraj (Died) on 30 March, 2022
S.A.(MD)No.442 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 30.03.2022
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.442 of 2010
and
M.P.(MD)No.1 of 2010
and
M.P.(MD)No.2 of 2010
Sarojini (died)
Sakila Begum
Baheerathammal Memorial Women and Child
Welfare Charitable Trust,
Saradha Nursery and Primary School,
Rep. by its Correspondent,
Athi Vinayakar Koil Street,
Karur 639001. ... Appellant / Appellants / Defendant
(This Court suo motu substituted Sakila Begum
in the place of Sarojini vide order dated 30.03.2022)
-Vs-
1.Nagaraj (died)
2.Vaijayanthi
3.Subramani
4.Sivaganga ... Respondents / Appellants / Plaintiffs
5.N.Pushbha
6.N.Santha
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1/8
S.A.(MD)No.442 of 2010
7.N.Sathish
8.N.Srinivasan
9.N.Rajeshwari ... Respondents
(Respondents 5 to 9 are brought on record as LRs of the
deceased 1st Respondent vide order dated 10.02.2022 made
in C.M.P.(MD)Nos.10243 to 10245 of 2016)
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code, against the judgment and decree in A.S.No.76 of 2009 dated
31.03.2010 on the file of the Additional Subordinate Judge, Karur reversing
the judgment and decree in O.S.No.672 of 2007, dated 21.08.2009 on the
file of the Additional District Munsif Court, Karur.
For Appellant : Mr.K.Govindarajan
For R2 & R9 : Mr.V.Meenakshi Sundaram
for Mr.D.Nallathambi
JUDGMENT
One Nagaraj and three others filed O.S.No.672 of 2007 on the file of
the Additional District Munsif Court, Karur for directing the defendant to
hand over the suit property.
2. The defendant filed written statement controverting the plaint
averments. Based on the divergent pleadings, the trial court framed the
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S.A.(MD)No.442 of 2010
necessary issues. The first plaintiff examined himself as P.W.1 and marked
Ex.A1 to Ex.A4. On the side of the defendant, one Hilda Kasthuribai was
examined as D.W.1. Ex.B1 to Ex.B3 were marked. After considering the
evidence on record, the trial Court by judgment and decree dated
21.08.2009 dismissed the suit even while holding that the defendant must
enhance the rent payable. Aggrieved by the same, the plaintiffs filed
A.S.No.76 of 2009 before the Additional Sub Court, Karur. By the
impugned judgment and decree dated 31.03.2010, the first appellate court
reversed the decision of the trial court and directed the defendant to
surrender vacant possession of the suit property. Challenging the same, this
second appeal came to be filed. The second appeal was admitted on
13.05.2010 on the following substantial questions of law:-
“1.Whether the suit is not in consonance with Section 51 of the Transfer of
Property Act, 1882?
2. Whether the legal heirs of the owner of the property are entitled to
recover the property, which was dedicated for religious or charitable purpose?
3. Whether the notice under Section 106 of Transfer of Property Act, 1882,
is valid?”
3. The learned counsel appearing for the appellant reiterated all the
contentions set out in the memorandum of grounds and called upon this
Court to answer the substantial questions of law in favour of the appellant.
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S.A.(MD)No.442 of 2010
4. Per contra, the learned counsel appearing for the respondents
submitted that the impugned judgment and decree do not call for any
interference.
5. I carefully considered the rival contentions and went through the
evidence on record.
6. There is no dispute that the suit property was purchased by one
Sithoji Naidu for rendering service to the Pillaiar Temple in Kurumboor
street, Karur Town. The said Sithoji Naidu rented out the suit property in
favour of a women's organisation represented by one T.M.Baheerathammal.
They entered into a rental agreement dated 30.04.1945. The said agreement
was marked as Ex.A1. As per the terms of the lease deed, the women's
organisation was to remain in possession of the property for a period of 50
years. The lease period has since expired. The lessor Sithoji Naidu has also
passed away long back. The plaintiffs are none other than his
grandchildren.
7. The stand of the plaintiffs is that the women's organisation is not
functioning in the suit property. But then, a school run by them is situated
thereon. The plaintiffs therefore issued Ex.A2-notice dated 06.09.2007
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S.A.(MD)No.442 of 2010
calling upon the defendant to vacate the property and hand over possession
of the same. The trial court acted as if it is a rent controller. If a valid
notice under Section 106 of the Transfer of Property Act had been issued,
then, a Court ought to necessarily order the defendant to hand over
possession. The first appellate court rightly interfered with the decision of
the trial court and by a well considered decision, granted the suit relief as
sought for.
8. The first substantial question of law framed in this second appeal is
as to whether Section 51 can be invoked in favour of the defendant. The
defendant admittedly was inducted only as a tenant. The lease period was
also specifically fixed. Section 51 of the Transfer of Property Act is as
follows:-
51.Improvements made by bona fide holders under defective
titles:- When the transferee of immovable property makes any
improvement on the property, believing in good faith that he is absolutely
entitled thereto, and he is subsequently evicted there from by any person
having a better title, the transferee has a right to require the person causing
the eviction either to have the value of the improvement estimated and
paid or secured to the transferee, or to sell his interest in the property to the
transferee at the market value thereof irrespective of the value of such
improvements.
The amount to be paid or secured in respect of such improvement
shall be the estimated value thereof at the time of the eviction.
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When, under the circumstances aforesaid, the transferee has planted
S.A.(MD)No.442 of 2010
or sown on the property crops which are growing when he is evicted
therefrom, he is entitled to such crops and to free ingress and egress to
gather and carry them.
9. This provision was considered in R.S.Madanappa Vs.
Chandramma AIR 1965 SC 1812. It was held in the said case that no man
who, knowing fully well that he has no title to property spends money on
improving it can be permited to deprive the original owner of his right to
possession of the property except upon the payment for the improvements
which were not effected with the consent of that person.
10. In the case on hand, the lessee knew that after expiry of the lease
period, vacant possession will have to be handed over. The improvements
were not made with the consent of the landlord. Section 51 of the Act will
apply only if the person making improvements his transferree of immovable
property who belives in good faith that he is absolutely entitled thereto. A
tenant simpliciter is not entitled to the benefit of the said provision.
Therefore, the first substantial question of law is answered against the
appellant. The plaintiffs are none other than the grandchildren of the
original Sithoji Naidu. It is true that the property has been dedicated for
religious purpose. Therefore, the plaintiffs are in the position of the
trustees. They are very much entitled to recover the property in question.
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S.A.(MD)No.442 of 2010
In fact, it is the duty of the trustee of the religious Trust to properly manage
the Trust properties. The second substantial question of law is also
answered against the appellant. The first appellate court has found that the
suit notice is very much valid under Section 106 of the Transfer of Property
Act. The said finding has not been shown to be incorrect. The third
substantial question of law is also answered against the appellant. The
impugned judgment and decree passed by the first appellate court are
confirmed. The second appeal is dismissed. Time for handing over the suit
property to the respondents is six months. The appellant is directed to file
an affidavit in this regard. No cost. Consequently, connected
miscellaneous petitions are closed.
30.03.2022
Internet : Yes/No
Index : Yes/No
rmi
To
1.The Additional Subordinate Judge, Karur.
2.The Additional District Munsif Court, Karur.
Copy To
The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
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S.A.(MD)No.442 of 2010
G.R.SWAMINATHAN.J.,
rmi
Judgment made in
S.A.(MD)No.442 of 2010
30.03.2022
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