Madras High Court
Cehanni Vazh Kadampur Indu Nadar vs T.N.S.Lakshmi on 31 March, 2022
S.A.(MD)No.246 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 31.03.2022
CORAM:
THE HON'BLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD) No.246 of 2010
and
M.P.(MD) No.1 of 2010
Cehanni Vazh Kadampur Indu Nadar
Uravinmurai Mahamai Paribalanam
Arulmigu Sri Mariamman Seva Trust,
Rep., through its Managing Trustee,
A.Soundrapandia Nadar,
Door No.21, 22, Giri Street,
West Mambalam, Chennai. .. Appellant/Respondent/
Plaintiff
-vs-
1.T.N.S.Lakshmi
2.Shanthi
3.Vijayalakshmi .. Respondents/Appellants/
Defendants
Prayer :- Second Appeal filed under Section 100 of Civil Procedure Code
to set aside the Judgment and Decree passed in A.S.No.30 of 2009 dated
02.11.2009 on the file of the Sub-Court, Kovilpatti, reversing the
judgment and decree passed in O.S.No.91 of 2006 dated 27.06.2008 on
the file of the District Munsif Court, Kovilpatti.
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S.A.(MD)No.246 of 2010
For Appellant : Mr.V.Meenakshi Sundaram
For RR2 & 3 : Mr.R.Ganesh
for Mr.V.Malaiyendran
Respondent-1 : Died
******
JUDGMENT
The plaintiff in O.S.No.91 of 2006 on the file of the District
Munsif Court, Kovilpatti is the appellant in this Second Appeal. The suit
was for permanent injunction restraining the defendants from interfering
with the plaintiff's right to use the second schedule pathway to access the
first schedule property. The first schedule property is comprised in S.No.
179/11 in Kadambur Village in Kovilpatti Taluk. A hospital, named
'T.N.Somasundara Nadar – S.Saraswathiammal Hospital' is functioning
therein. According to the plaintiff, only through the suit second
schedule, the hospital can be reached. The defendants filed written
statement controverting the plaint averments. Based on the divergent
pleadings, the trial court framed the necessary issues. On the side of the
plaintiff, as many as four witnesses were examined. Ex.A1 to Ex.A20
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S.A.(MD)No.246 of 2010
were marked. The 2nd defendant-Shanthi examined herself as D.W.1.
One Karuppasamy Nadar was examined as D.W.2. No document was
marked on the side of the defendants. After consideration of the
evidence on record, the trial court by judgment and decree dated
27.06.2008, partly decreed the suit by holding that the right of the
plaintiff to use the suit second schedule pathway cannot be interfered
with except by due process of law. Aggrieved by the same, the
defendants filed A.S.No.30 of 2009 before the Sub Court, Kovilpatti. By
the impugned judgment and decree dated 02.11.2009, the first appellate
court reversed the decision of the trial court and allowed the appeal and
dismissed the suit in toto. Aggrieved by the same, this second appeal
came to be filed.
2. The second appeal was admitted on 24.03.2010 on the following
substantial questions of law:-
“1. Whether the lower appellate court is correct in
rejecting the relief of injunction on the ground that the
appellant has not been given possession in a lawful way in
respect of the second schedule property when the Supreme
Court of India and High Courts have held that in a suit for
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S.A.(MD)No.246 of 2010
bare injunction the question of title would not arise if there
is evidence to show that the plaintiff is in settled
possession of the property, even if he is a trespasser, he
can obtain injunction?
2. Whether the findings of the court below that the
Transfer of Property in favour of Charity or Trust can be
effected only by a registered deed is correct, when
dedication of Charity or a Trust can be made orally and
the same had inferred by its long user and circumstances?
3. Whether the approach of the courts below that
Chennai Vazh Kadambur Hindu Nadar Uravinmurai
Mahamai and Arulmigu Sri Muthumariamman Seva Trust
are different while Arulmigu Muthumariamman Seva Trust
is in fact a limb of Chennai Vazh Kadambur Hindu Nadar
Uravinmurai Mahamai Paribalanam?”
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 and set aside the impugned judgment and decree.
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S.A.(MD)No.246 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. There is no dispute that the suit property belonged
to Shri.T.N.Somasundara Nadar and his wife Tmt.Saraswathiammal.
Under Ex.A1 dated 08.10.1959 and Ex.A2 dated 15.10.1959, they
purchased the land covered in Schedule-I and Schedule-II.
Saraswathiammal passed away in the year 1995. Even during her life
time, T.N.Somasundara Nadar had married Saraswathiammal's sister viz.,
T.N.S.Lakshmi. Following the demise of Saraswathiammal, her
undivided share devolved on her husband T.N.Somasundara Nadar.
According to the plaintiff/appellant herein, Somasundara Nadar was a
public spirited person. He took the lead and formed a registered Society
known as 'Chennai Vazh Kadambur Indu Nadar Uravinmurai Mahamai
Paribalanam'. He also formed a public charitable trust known as
'Arulmigu Sri Mariamman Seva Trust' in the year 1979.
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S.A.(MD)No.246 of 2010
T.N.Somasundara Nadar dedicated the land covered under Ex.A1 and
Ex.A2 in favour of the Trust. The Trust is also managed only by the
aforesaid Society. The executive Committee of the Society passed Ex.A6
resolution for dedicating the suit land in favour of the Trust so that a
charitable hospital can be run thereon. This resolution passed by the
Scoiety was also adopted by the plaintiff Trust later. Both the resolutions
were signed by T.N.Somasundara Nadar. The minute books have been
marked as Ex.A5 and Ex.A6. The object of the Society as well as the
Trust is only to serve the people at large. The learned counsel for the
appellant contended that even though the gift was not made by
T.N.Somasundara Nadar through a registered instrument, still a
dedication of this nature is very much valid in the eye of law. He took
me through the contents of Ex.A5 and Ex.A6 resolutions. They
contemplate that after the land is donated, a hospital will be constructed
and named after the donor. It was also contemplated that
T.N.Somasundara Nadar apart from gifting the land, will also make a
financial contribution. The construction of the hospital was completed
some time in December, 1999. The hospital was inaugurated on
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S.A.(MD)No.246 of 2010
30.01.1999 in the presence of T.N.Somasundara Nadar himself.
According to the appellant's counsel, these facts would clearly show that
by his conduct, T.N.Somasundara Nadar had dedicated the property
including the hospital in favour of the plaintiff/Trust.
6. The learned counsel relied on the judgment reported in (2011) 1
SCC 623 (Sainath Mandir Trust vs. Vijaya and others) for the
proposition that a dedication in favour of a deity can be oral or through
an unregistered instrument also. He took me through the testimony of
the witnesses. The witnesses examined on the side of the defendants
admitted that the plaintiff/Trust is in possession of the hospital located in
the suit first Schedule. The Trust is admittedly running the hospital.
Since the hospital can be accessed only through the second schedule
pathway, blocking the same not only defeats the noble object of the
donor, T.S.Somasundara Nadar, but is also illegal. He pointed out that
the first appellate court had proceeded on the premise that since the mode
of gift is not in accordance with law, the plaintiff must be considered as a
person in illegal possession. Since injunction is an equitable remedy, a
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S.A.(MD)No.246 of 2010
person in illegal possession is not entitled to the same. According to
him, the judgment of the first appellate court is anchored on an erroneous
premise. He called for reversing the impugned judgment and decree
passed by the first appellate court.
7. I am not persuaded by the said contention of the learned counsel
appearing for the appellant that the dedication made by T.N.Somasundara
Nadar in favour of the Trust is valid. As rightly pointed out by the
learned counsel appearing for the respondent, the Hon'ble Supreme Court
in the decision reported in (2011) 1 SCC 623 had not laid down any
definite proposition. He drew my attention to an unreported decision
rendered in S.A.No.971 of 2008 dated 22.02.2021 (Ravi Kumar and
others vs. V.Balakrishnan). In the said decision, it was observed that the
Hon'ble Supreme Court after referring to the Full Bench decision of the
Madras High Court reported in AIR 1927 Mad. 636 had left the
contentious issue open and expressed no final opinion as to the question
whether the deed of gift executed in favour of the appellant trust having
not been registered would confer any title to the appellant's trust and also
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S.A.(MD)No.246 of 2010
noted that the said point was neither pressed hard nor argued by the
counsel threadbare.
8. I would rest my conclusion slightly on a different footing.
When the decision of the Madras High Court referred to in Sainath
Mandir Trust was rendered, Section 5 of the Transfer of Property Act
was as follows:-
“5. “Transfer of property” defined.– In the
following sections “transfer of property” means an act by
which a living person conveys property, in present or in
future, to one or more other living persons, or to himself,
and one or more other living persons and “to transfer
property” is to perform such act.”
9. In the year 1929, the following was added under Amendment
Act 20 of 1929:
“In this section “living person” includes a
company or association or body of individuals, whether
incorporated or not, but nothing herein contained shall
affect any law for the time being in force relating to
transfer of property to or by companies, associations or
bodies of individual.”
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S.A.(MD)No.246 of 2010
10. The above amendment completely alters the legal position. If
the dedication is made in favour of an idol, then of course, it would not
require registration. But then a gift made in favour of a registered Trust
or a registered Society would definitely attract the explanation clause
added to Section 5 of the Transfer of Property Act. Therefore, I sustain
the contention of the learned counsel appearing for the respondents that
the dedication made in the instant case is not valid. In fact, the trial court
had also arrived at the very same conclusion. That is why the suit prayer
as sought for was not granted. Interestingly, the plaintiff did not file any
appeal or cross objection. The said finding had become final. The second
substantial question of law is answered against the appellant.
11. The fact remains that there is a registered Society. A Trust was
also independently formed. Whether the Trust is a limb of the Society or
not could not have been gone into in a suit for permanent injunction. The
third substantial question of law is answered accordingly.
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S.A.(MD)No.246 of 2010
12. Let me now consider the first substantial question of law. The
defendants themselves have fairly conceded that the plaintiff/Trust is
very much running the hospital in question. The hospital in question is
located in the suit Schedule-I. I had a look at the photographs. The
hospital is almost abutting the main road. Schedule-II pathway measures
12 feet x 144 feet. The plaintiff was using the said pathway right from
the date of inauguration till the cause of action arose. If the defendants
want to interfere with the said usage, they must take recourse to due
process of law. They could not have arbitrarily blocked the passage. An
existing usage cannot be high-handedly interfered with. The Hon'ble
Supereme Court in Poona Ram Vs Moti Ram (2019) 11 SCC 309
following the leading decision Rame Gowda Vs M.Varadappa Naidu
(2004) 1 SCC 769 held that the person in settled possession is entitled to
protection even if he is not the true owner. He can be evicted only by
due process of law. I am satisfied that there was acquiescence on the part
of Late T.N.Somasundara Nadar. That is why, the trial court even while
sustaining the stand of the defendant held that only by due process of
law, the rights of the plaintiff can be interfered with. The first substantial
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S.A.(MD)No.246 of 2010
question of law is answered in favour of the appellant. The judgment and
decree of the first appellate court is set aside. The judgment and decree
of the trial court stands restored. The Second Appeal is allowed. No
costs. Consequently, connected miscellaneous petition is closed.
31.03.2022
Index : Yes/No
Speaking/Non-Speaking Order
Note:- In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order
may be utilized for official purposes, but, ensuring
that the copy of the order that is presented is the
correct copy, shall be the responsibility of the
Advocate / litigant concerned.
mga/abr
To
1. The Sub Judge, Kovilpatti.
2. The District Munsif, Kovilpatti.
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S.A.(MD)No.246 of 2010
G.R.SWAMINATHAN, J.
mga/abr
S.A.(MD) No.246 of 2010
31.03.2022
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