Madras High Court
K.Natarajan vs M.Vr.Mela Oorani Trust on 11 December, 2023
Author: G. Chandrasekharan
Bench: G. Chandrasekharan
S.A(MD)No.556 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 11.12.2023
CORAM:
THE HONOURABLE MR.JUSTICE G. CHANDRASEKHARAN
S.A(MD)No.556 of 2023
and
C.M.P(MD) No.13155 of 2023
K.Natarajan ...Appellant
-Vs-
M.VR.Mela Oorani Trust,
Mela Oorani Road, Karaikudi,
Represented by its Managing Trustees
L.Murugappan
and
SP.Subramananian ... Respondent
PRAYER: Second Appeal is filed under Section 100 of the Code of Civil
Procedure, to call for the records relating to the judgment and decree dated
29.06.2022 in A.S.No.51 of 2018 on the file of learned Sessions Judge, Fast Track
Mahila Court, Sivagangai, reversing the judgment and decree dated 24.09.2018 in
O.S.No.41 of 2017 on the file of the Subordinate Court, Devakottai and set aside
the same and allow the present second appeal.
1/17
https://www.mhc.tn.gov.in/judis
S.A(MD)No.556 of 2023
For Appellant : Mr.K.Saravanan
For Respondent : Mr.H.Arumugam
for Mr.S.V.Sankar
JUDGMENT
This second appeal is filed challenging the judgment in A.S.No.51 of 2018
on the file of the learned Sessions Judge, Fast Track Mahila Court, Sivagangai,
reversing the judgment in O.S.No.41 of 2017 on the file of the learned
Subordinate Judge, Devakottai.
2. The respondent/plaintiff filed a suit in O.S.No.41 of 2017 on the file of
the Trial Court, seeking the relief of declaration that the suit property belongs to
the plaintiff Trust and also for recovery of possession. The case of the
respondent/plaintiff in brief is that the suit property was a ryotwari land in Town
Survey No.83, Patta No.1443 at Karaikudi Town. The plaintiff trust is a private
trust for charitable purposes formed by two families of Karaikudi Nagarathars,
namely, one Meiyappa Chettiyar and Veerappa Chettiyar before 200 years back.
The trust was in their names of the first letter. The trust was not registered.
Among the legal heirs of the two families, the married male members will become
https://www.mhc.tn.gov.in/judis
the members of the trust. Every year, the Managing Trustees will be elected by all
the trustees. Out of the quorum present, the trust will elect the Managing Trustees.
The Managing Trustees have the power of administration and maintenance of
account of the trust including the power to sue and to defend the suit on behalf of
the trust and its properties. L.Murugappan and SP.Subramanian were elected as
Managing trustees through the resolution dated 26.05.2016. There are several
properties under the administration and management of the trust. One of the trust
properties is the suit property. Some of the properties possessed and enjoyed by
the trust have been taken over by the Government as per Tamilnadu Inam
Abolition Act, 1963. In a subsequent claim made by the trust, enquiry was
conduced by the Assistant Settlement Officer, Sivaganga and by his proceedings,
it was again given to the plaintiff trust. The defendant / appellant was not a tenant
of the plaintiff trust. By creating the fraudulent conveyance for the superstructure
on the suit properties through misrepresentation, patta was obtained from the
Assistant Settlement Officer, Chennai, named Muthukrishnan, in respect of the
suit property in the year 1995. It came to the knowledge of the
plaintiff in September 2006. The plaintiff trust gave a petition dated 12.09.2006
to cancel the patta to the Devakottai, Revenue Divisional Officer. After hearing
https://www.mhc.tn.gov.in/judis
both sides, the Revenue Divisional Officer cancelled the patta by his order dated
30.08.2007 in PA.MU.A1/7920/2006. Taking advantage of the earlier patta, the
defendant trespassed into the suit property in April 2007 and claimed that he is in
possession and enjoyment of the suit property. A police complaint was given.
The defendants approached the High Court against the order of RDO, Devakottai
in WP(MD) No.49743 of 2011. This Court ordered to re-enquire the matter. The
Hon'ble High Court in W.P(MD)No.2904 of 2005 dated 24.09.2008 held that the
patta issued by the Assistant Settlement Officer from 1994 stands cancelled and
criminal action to be initiated against him. The Revenue Divisional Officer passed
an order on 25.06.2013 in Na.K.A1/2415/2013 in favour of the plaintiff trust by
cancelling the patta granted in favour of the defendant. Against the said order,
the defendant filed a revision before the District Revenue Officer, Sivaganga. The
District Revenue Officer, Sivaganga confirmed the order of Revenue Divisional
Officer, through his order dated 29.02.2016 in NA.KA.D1/17233/2013. The
defendant is trespasser of the suit property. In the said circumstances, the suit is
filed for the aforesaid relief.
3. In the written statement filed by the defendant, it is denied that the
https://www.mhc.tn.gov.in/judis
plaintiff is a private trust. There is no document filed to show the creation of
M.VR.Mela Oorani Trust. The averments made in the plaint that the trust was
formed 200 years back and the trustees were elected, are objected. The claim of
succession of trusteeships is neither in accordance with Hindu Succession Act nor
in accordance with the provisions of the Trust Act. In the absence of any
document in support of the claim of succession, the plaintiff cannot claim to have
right over to maintain and administer the trust. There is no detail given with
regard to the properties owned by the trust. As per Section 15 of Inam Abolition
Act, when a building has been constructed by any other person than the land
holder, the person who put up the building would be eligible for grant of patta.
Perusal of District Revenue Officer's order would go to show that there is no
finding of title in favour of the plaintiff. The defendant is carrying on business as
car mechanic by establishing a service centre for the past 40 years as of right, by
exercising right of ownership in a larger extent of the property. The plaintiff has
mentioned only a lesser extent by not mentioning the other structures in the rest
of the area. By a long, open and continuos possession without any interference as
a owner of the property, the defendant acquired prescriptive title. Thus, the
defendant prayed for dismissal of the suit.
https://www.mhc.tn.gov.in/judis
4. During the trial, on the side of the plaintiff, PW1 and P.W.2 were
examined and Exs.A1 to A.21 were marked and on the side of the defendant,
D.W.1 was examined and no documentary evidence was produced.
5. On going through the oral and documentary evidence, the learned Trial
Judge had dismissed the suit for the reasons that there is no proof to show that the
trust was formed 200 years back; trust is not registered under Section 5 of Indian
Trust Act and the other trustees are not impleaded as per Section 36 and 48 of
Indian Trust Act. Challenging the dismissal of the suit, the respondent filed an
appeal in A.S.No.51 of 2018 on the file of the learned Sessions Judge, Fast Track
Mahila Court, Sivagangai. The learned First Appellate Judge, on re-appreciation
of oral and documentary evidence, found that the trust was formed more than 200
years back; Ex.A2 to 10, Ex.A13 and Ex.A14 established the fact that the suit
properties belonged to the plaintiff trust; the defendant has not produced any
evidence to show that he is in possession and enjoyment of the suit property; the
suit is not required to be registered as per Section 95 of the Indian Trust Act;
Ex.A15 was executed to safeguard the property of the trust and therefore, the suit
is valid. On these reasonings, the learned First Appellate Judge reversed the
https://www.mhc.tn.gov.in/judis
judgment of the trial Court and decreed the suit. Therefore, the defendant filed
this second appeal.
6. The learned counsel for the appellant submitted that as per Section 5 of
Indian Trust Act, the Trust is required to be registered. Having failed to register
the trust, the suit filed itself is not maintainable. There is no evidence to show
that the trust was established 200 years back. Ex.A15 is a the xerox copy of the
document and therefore, it was rightly rejected by the trial Court. No plausible
reasons were given by the first appellate Court for accepting Ex.A15. When other
trustees have not joined in filing the suit, the suit is not maintainable. He further
submitted that the defendant purchased this property through a registered sale
deed in 1970 and he filed a petition for reception of additional document. That
sale deed will establish his title to the suit property. Thus, he prayed for setting
aside the judgment of the first appellate Court and for dismissal of the suit.
7. In response, the learned counsel for the respondent submitted that it is
pleaded in the plaint that the trust was established 200 years back and therefore,
there is no document was executed for establishment of the trust. The fact that
the trust was established 200 years back was not specifically denied in the written
https://www.mhc.tn.gov.in/judis
statement, but a bald allegation was made that the pleading in this regard is
objected. When the trust was established 200 years back, the application of
Section 5 cannot be invoked in this case. Assuming that Section 5 of Indian Trust
Act applies, this Section reads that this rule do not apply where they would
operate so as to effectuate a fraud.
8. In continuing his submission, the learned counsel for the respondent
submitted that the defendant obtained a patta in respect of the suit property by
fraudulent deed. On the proceeding initiated by the respondent, the patta was
cancelled by the Revenue Divisional Officer and that was confirmed by the
District Revenue Officer and the High Court directed for initiation of criminal
action against one Muthukrishnan, who was the then Assistant Settlement Officer,
responsible for issuing patta to persons, who had no legal claim. Ex.A15
authorized the present plaintiff to institute the suit. Sections 36 and 48 of the
Indian Trust Act have no application for the present case.
9. Considered the rival submission and perused the records.
https://www.mhc.tn.gov.in/judis
10. From the pleadings, oral and documentary evidence, judgments of the
Courts below and the submissions of the learned counsel for the parties, there is a
rival claim with regard to the suit property. The plaintiff claimed that the suit
property belongs to the trust. In support of this, the plaintiff has produced Ex.A1
to Ex.A21 documents. On the other hand, the defendant claimed that he is in
possession and enjoyment of the suit property for more than 40 years. In support
of his contention, except the oral evidence of defendant as R.W.1, no
documentary evidence was produced. Ex.A1 to Ex.A9 show that the suit property
is registered in the name of the plaintiff trust and the plaintiff trust has been
paying property tax and kist for the suit property. Ex.A10 is the proceeding of the
RDO, Devakottai giving patta to the defendant in respect of the suit property.
However, in the proceedings initiated before the District Revenue Officer, the
patta issued in favour of the defendant was cancelled. The defendant filed a
revision against this order before the District Revenue Officer and the District
Revenue Officer had confirmed the order passed by the Revenue Divisional
Officer and dismissed the revision petition filed by the defendant. Ex.A18 to
Ex.A20 are the proceedings between the plaintiff and the brother of the defendant
in respect of the plaintiff trust property. It is stated that the proceedings ended in
https://www.mhc.tn.gov.in/judis
favour of the plaintiff. The trial Court rejected the reliance on these documents
for the reason that there was no pleading in respect of these documents.
Similarly, Ex.A15 is the xerox copy of the memorandum empowering the present
plaintiff to file the suit. That was also rejected by the trial Court for the reason
that Ex.A15 is the xerox copy and not proved in accordance with law.
11. The learned First Appellate Court on re-appreciation of the evidence
found that Ex.A2 to Ex.A10, Ex.A13 and Ex.A14 had clearly established the title
of the plaintiff in respect of the suit property, whereas the defendant had failed to
produce any single document in support of the claim in the suit property. There is
also a finding that the plaintiff trust was created more than 200 years back and it
is not necessary for it to get registered.
12. It is true that there is no clinching evidence available to show that the
trust was established 200 years back. The fact remains that the patta granted in
respect of the suit property in favour of the defendant was cancelled and patta in
the name of the plaintiff in respect of the suit property, was confirmed. This is
evident from Ex.A13 and Ex.A14. Ex.A2 to Ex.A10 confirm that several records
https://www.mhc.tn.gov.in/judis
stand in the name of the plaintiff trust. When the plaintiff claimed that the trust
was established 200 years back, there is no specific denial in the written
statement, except a bald objection that this claim is objected.
13. Section 5 of the Indian Trust Act reads as follows:
5. Trust of immoveable property.—No trust in relation to
immoveable property is valid unless declared by a non-
testamentary instrument in writing signed by the author of the
trust or the trustee and registered, or by the will of the author of
the trust or of the trustee.
Trust of moveable property.—No trust in relation to moveable
property is valid unless declared as aforesaid, or unless the
ownership of the property is transferred to the trustee.
These rules do not apply where they would opera te so as
to effectuate a fraud.
14.This Section stipulates that unless the trust is declared by
non-testamentary instrument in writing signed by the author of the trust and
registered, the trust is not valid. However, this Section also reads that this rule
will not apply, where it would operate so as to effectuate a fraud.
https://www.mhc.tn.gov.in/judis
15. Section 1 deals with commencement of Indian Trust Act. It reads as
follows:-
1.Short title, Commencement.---This Act may be called the
Indian Trusts Act, 1882 and it shall come into force on the first day
of March, 1882.
16. As per this Section, Indian Trust Act comes into force on the 1 st day of
March 1882. When it is claimed that the plaintiff trust was established 200 years
back, i.e., in and around 1817, it is no doubt that the provision of Indian Trust Act
cannot be made applicable to the plaintiff trust. Even assuming that the trust had
come into existence after the enactment of the Indian Trust Act, 1882, as per
Section 5 of the Act, the rules do not apply where they would operate so as to
effectuate a fraud. When it is clearly established from Ex.A13 to Ex.A14, that
patta granted in favour of the the defendant was cancelled, obviously for
obtaining a patta by fraudulent means, this Court has no second opinion in
concluding that Section 5 of the Act is not applicable to the facts of this case.
17. The next and important ground taken is that Ex.A15 is only a xerox
copy and the reliance placed by the first appellate Court as Ex.A15 is not correct.
https://www.mhc.tn.gov.in/judis
Admittedly, Ex.A15 is the xerox copy of the resolution empowering the plaintiff
to file the suit. If there is an objection to mark this document, the objection
should have been taken at the time of marking the document. Having failed to
object to mark Ex.A15, it is not open to the defendant now to contend that
Ex.A15 is not reliable and it cannot be acted upon.
18. Sections 36 and 48 reads as follows:-
36. General authority of trustee.—In addition to the
powers expressly conferred by this Act and by the instrument of
trust, and subject to the restrictions, if any, contained in such
instrument, and to the provisions of section 17, a trustee may
do all acts which are reasonable and proper for the realisation,
protection or benefit of the trust-property, and for the
protection or support of a beneficiary who is not competent to
contract.
[* * *]
Except with the permission of a principal Civil Court of
original jurisdiction, no trustee shall lease trust-property for a
term exceeding twenty-one years from the date of executing the
lease, nor without reserving the best yearly rent that can be
reasonably obtained.
https://www.mhc.tn.gov.in/judis
48. Co-trustees cannot act singly. —When there are more
trustees than one, all must join in the execution of the trust,
except where the instrument of trust otherwise provides.
19. Section 36 deals with general authority of the trustee. Section 48 deals
with Co-trustees cannot act singly. However, in the case on hand, Ex.A15
empowers the plaintiff to institute the suit. Therefore, the filing of the suit by the
plaintiff cannot be questioned. The plaintiff, by producing oral and documentary
evidence, clearly established its title and the claim in respect of the suit property,
whereas the defendant, by not producing any single document in support of his
claim of possession for over 40 years, miserably failed to prove his case. The
plaintiff has a better case than the defendant and therefore, this Court is of the
view that the first appellate Court has rightly reconsidered the evidence, set aside
the judgment of the trial Court and decreed the suit. The finding of the first
appellate Court does not require any interference.
20. In Sir Chunilal V. Mehta and Sons v. The Century Spinning Co. Ltd.,
1962 reported in AIR 1962 SC 1314, the Hon'ble Supreme Court formulated what
amounts to a substantial question of law, as follows:
https://www.mhc.tn.gov.in/judis
1.Whether it is of general public importance (or)
2.Whether it directly and substantially affects the rights of parties and if so,
3.Whether it is either an open question (in the sense not finally settled by
this Court or Privy Council or Federal Court) (or)
4.The question is not free from difficulty and calls for discussion of
alternative views.
21. In the case before hand, the appellant has not made out any of the
aforesaid grounds to formulate substantial question of law. There is no
substantial question of law arises for consideration in this second appeal.
22. In fine, this Second Appeal is dismissed confirming the judgment dated
29.06.2022 made in A.S.No.51 of 2018, on the file of learned Sessions Judge,
Fast Track Mahila Court, Sivagangai. No costs. Consequently, connected
miscellaneous petition is closed.
11.12.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
cp
https://www.mhc.tn.gov.in/judis
To
1.The Sessions Judge,
Fast Track Mahila Court,
Sivagangai.
2.The Subordinate Judge, Devakottai.
3.The Record Keeper,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
G. CHANDRASEKHARAN, J.
cp
11.12.2023
https://www.mhc.tn.gov.in/judis
