Madras High Court
K.M.Sanjeevi Raja (Died) vs ___________ on 8 August, 2024
Author: D.Bharatha Chakravarthy
Bench: D.Bharatha Chakravarthy
2024:MHC:3012
T.C.T.O.P. (MD) No.1 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
ORDERS RESERVED ON : 31.07.2024
ORDERS PRONOUNCED ON : 08.08.2024
CORAM
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
T.C.T.O.P. (MD) No.1 of 2024
1.K.M.Sanjeevi Raja (died)
2.K.S.Chinnammal (died)
3.K.S.Mahadevaraja
4.K.S.Kalyaniammal
5.K.S.Ramasubramaniyaraja (died)
6.K.S.Padmanarayana Raja
7.K.S.Rajagopal Raja
8.K.R.Rajeswari
9.K.R.Sivatharmaraja
10.P.K.Lalitha
(Petitioners 2 to 7 are legal heirs of
deceased first petitioner, impleaded as per the
order in I.A.No.2 of 2019 dated 20.12.2019)
(Petitioners 8 to 10 are legal heirs of
deceased 5 petitioner, impleaded as per the
th
order in I.A.No.343 of 2001 dated 05.02.2013) ... Petitioners
Vs.
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T.C.T.O.P. (MD) No.1 of 2024
Pudupalayam Sakarajakottai
Poosapadi Dayadi Pannai
Nandavanam, Rajapalayam.
Represented by its President
(amended as per order in I.A.No.1 of 2020
dated 29.01.2020) ... Respondent
PRAYER: Transferred City Tenant Original Petition filed under Clause 15
of the Letters Patent, (a) to direct the respondent to sell the under mentioned
property vacant land to the 3 , 6 and 7 petitioners for a price to be fixed by
rd th th
the Hon'ble Court in accordance with the provisions of the Tamil Nadu
Tenants Protection Act, (b) to direct the respondent to pay the petitioner the
costs of this application, and (c)grant such further and other reliefs.
(amended as per order in I.A.No.1 of 2020 dated 29.01.2020)
For the petitioners : Mr.S.Kadarkarai
For the respondent : Mr.R.Suriya Narayanan
ORDER
A. Prelude:
This Transferred City Tenant Original Petition (TCTOP) arises out of
O.P.No.139 of 1979, in O.S.No.224 of 1979.
1.1 On 09.07.1979, the said suit was filed with the reliefs directing
the defendants to vacate and surrender the possession of the suit property
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and for consequential reliefs. Admittedly, the tenancy is only concerning
land and the original first petitioner/tenant had put up superstructures.
1.2 The present original petition was filed by the first
petitioner/tenant under Section 9 of the Madras City Tenants’ Protection
Act, 1921 (hereinafter referred to as ‘the Act’), with a prayer to direct the
respondent/landlord to sell the vacant land described in the schedule to the
petition being part of the suit property to the petitioners 3, 6 and 7/tenants in
accordance with the provisions of the Act.
1.3 Since the year 1979, the matters were kept pending and in the
connected Civil Revision Petition (MD) No.1050 of 2023, this Court passed
a detailed order on 10.07.2024, withdrawing the suit as well as the present
TCTOP to the file of this Court. The said Order may be read as part and
parcel of this order. The TCTOP was transferred and re-numbered as
TCTOP (MD) No.1 of 2024 and the same is taken up for further hearing and
disposal.
1.4 When the matter came up for hearing, both sides learned counsel
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submitted that even though the above-connected Civil Revision Petition was
filed regarding an interlocutory order regarding the recall of P.W.1, both
sides have already let in evidence and their respective evidence on record.
They do not press further prayers of recalling the PW-1 and submitted that
for both sides no further evidence needed be let in the TCTOP and as such,
the present TCTOP is taken up for disposal by way of this order.
B. The Case of the Petitioners:-
2. A careful handling and perusal of the decrepit papers of the present
case reveals that the petition was filed by the original petitioner/tenant –
K.M.Sanjeevi Raja, which is being continued and pursued by his legal heirs.
The property described in the petition is a vacant site belonging to the
respondent/landlord. The same was leased to the original first petitioner, in
1945 for the purposes of putting up superstructure and installation of rice,
flour and oil mills, and boilers. The deceased first petitioner had put up rice,
flour, oil mills and boiler plants on the premises constructed a compound
wall and erected platforms and a shed in the southern portion of the suit
property. The value of the superstructure construction is over Rs.2 lakhs.
The original rent for the premises, i.e., the vacant site was Rs.140/- per
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annum and it has been periodically enhanced to Rs.960/- per annum. The
rents are being collected every year. It is not a case of monthly tenancy. The
business is the only source of livelihood for the deceased first petitioner and
his family. The entire vacant land is absolutely necessary for the deceased
first petitioner for the purpose of rice, flour and oil mills. The existing
platform is not sufficient for drying the boiled rice and keeping the bags.
The small front portion in the south abutting Tenkasi Road is also necessary
and is used as the entrance for loading and unloading.
2.1 There is a Well on the north side of the petition property. The
Well is part of the Nandavanam of the respondent. As an amenity for
convenient enjoyment of the demised premises and for the purpose of the
boiling rice, water from the Well was taken by the deceased first petitioner
and the charges for water being paid and the rates being fixed according to
the convenience of the respondent. The charges for supply of water at one
time was fixed at Rs.0.03 paise, for a bag of Paddy and the present rate is
Rs.45/- per month.
2.2 Pursuant to the direction of the respondent, the deceased first
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petitioner has paid the entire electricity charges installed in the Nandavanam
premises. Water from the Nandavanam is being utilized by the respondent
for their coconut saplings and also for the convenience of taking a bath.
From the institution of the suit, the supply of the water has since been
stopped by the respondent. The site that was leased measures 168/187 east-
west, 250 feet north to south in the west and 180 feet in the east. The leased
site abuts and adjoins the Tenkasi road. The market value of the land is
about Rs.80/- per cent. While so in the year 1976, due to enmity with some
of the office bearers of the respondent, the supply of water was stopped and
there was also an attempt to forcibly evict the petitioner, therefore, the
petitioner has filed the suit in O.S.No.146 of 1976 for a mandatory
injunction to supply water.
2.3 Pending the suit, now the present suit in O.S.No.224 of 1979 was
filed by the respondent/landlord for ejectment after terminating the lease.
The suit notice was served on the petitioner on 08.09.1979 and thereafter,
the present application is filed under the provisions of the Act. Apart from
the present petition, the petitioners were also entitled to compensation for
the superstructure under Section 3 of the said act. The act is extended to the
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Municipal area of Rajapalayam city, within which the property lies.
2.4 During the pendency of the proceedings, the original petitioner
died on 29.01.1989 and hence, the legal heirs of the first petitioner were
impleaded as petitioners 2 to 7. Thereafter, the 2nd petitioner also died and
an amendment was filed bringing the legal heirs, namely the petitioners 3 to
7, who were already on record and the same is recorded. Further, during the
pendency of the proceedings, the 5th petitioner also died and legal heirs of
the 5th petitioner were brought on record as petitioners 8 to 10. The details
about the earlier proceedings, regarding bringing on record of various legal
representatives are stated in the petition. It is pleaded that possession of the
premises is essential for the petitioners. Therefore, in the original petition,
the prayer is made for directing the respondent to sell the property to
petitioners 3, 6 and 7 for a price to be fixed by the honourable Court, in
accordance with the provisions of the Act and for costs.
C. The Case of the Respondents:
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3. The original petition was resisted by the respondent/landlord by
filing a statement of objections on 26.06.1980. As per the objections, the
petitioner has described a larger extent than what is described in the plaint
and therefore, they are not entitled to claim for sale of the property which is
not described in the plaint. The allegation that the superstructure is
Rs.2 lakhs was denied and it was contended that the value of the
superstructure was Rs.5,000/- only. According to the respondent, the
property was leased out on a monthly rental of Rs.20/- and after the
periodical increase, the petitioner was paying the rent of Rs.80/- per month
and not Rs.960/- per year. It is false to allege that the tenancy is only annual
and not monthly. The tenancy is only as per the English calendar month.
The allegation that the entire property is necessary for running the business
is false. The area claimed by the petitioners was not used by them. The fact
that there were disputes, which had arisen between the respondent and the
petitioners, there was a suit in O.S.No.146 of 1976 admitted. The petitioner
falsely claimed that the value of the property is Rs.80/- per cent. The
property which is leased out was situated in the Rajapalayam town. There
are a number of houses and bungalows in and around the property. The
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property will fetch more than Rs.600/- per month as rent. The price of the
suit property is not less than Rs.300/- per square feet. Since the petitioners
were not in the mind-set of vacating and handing over the possession of the
property, the suit has been filed. However, the petitioners are not entitled to
the benefits of the Act and the petitioners do not have a cause of action to
maintain the petition.
3.1 An additional statement of objections was filed in the year 2020,
whereby after pleading the earlier proceedings between the parties, a stand
was taken that the Madras City Tenants' Protection (Amendment) Act, 1921
(Tamil Nadu Act 2 of 1996) that came into force pending the original
petition grants exemption to the tenancy of lands, under any religious
institution or religious charity belonging to Hindu, Muslim, Christian or any
religion by adding class (f) of sub-section 3 of Section 1 of the Act. Given
the subsequent development as stated supra, the provisions under Section 9
of the Act are not applicable, as the respondent is a religious trust or
religious charity.
3.2 Earlier, this Court, had by an order dated 05.12.1996 called for a
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finding from the trial Court, whether the respondent is a religious trust or
not. The Trial Court submitted its finding on 08.08.1977 stating that though
the respondent is not a religious institution, it is a religious trust or religious
charity. By a settlement deed dated 20.11.1935, 24 Dayadhis belonging to 4
families of Pudupalayam Sakkarajakottai Poosapadi Dayadhi Pannai
executed a registered settlement deed in respect of their properties for
performing religious charities, as detailed therein. The settlement deed came
into force and is being acted upon. As per the settlement deed, Dayadhi
Pannai families (respondent) are performing the religious charities. The
registered settlement deed has to be read as part and parcel of the additional
statement of objections.
3.3 By the said registered settlement deed, the properties are divided
into 2 schedules. In the second schedule, there are 3 items of properties. The
first item of the second schedule is of an extent of 12.54 acres with 3 Wells
and Nandavanam. The first item of the 2nd schedule is dedicated to religious
charities, referred to in the registered settlement deed. It is evident from the
document that a clear distinction had been drawn between the two schedules
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of the properties referred to therein. The 2nd schedule properties are
inalienable, only to be held by the respondent Dayadhi Pannai family to
perform the religious charities. There is a Pillayar Temple in item 1 of the
2nd schedule. The petition-described property comprises the eastern portion
of item 1 of the 2nd schedule property. When the income from item 1 of the
2nd schedule properties, the respondent Dayadhi Pannai has been
performing the religious charities. With the income from the first item of
the 2nd schedule, poojas are performed in the Pillayar Temple in the first
item of the 2nd schedule. The flowers from the said Nandavanam are being
offered to the Pillayar Temple situated therein in the first item of the 2 nd
schedule to Arulmigu Vettai Venkatesa Perumal Temple in Rajapalayam,
besides Arulmigu Chokkarkoil and Karuppasamy Temple. There is a
Madam in the first item of the 2nd schedule. The Achariyar of the respondent
Dayadhi families, i.e., Dayadhis Kula Guru is invited and Kanikkai is being
offered to him and they will get his blessings.
3.4 The 2nd item of the 2nd schedule is the Chavadi of the Dayadhis.
Deepam is lighted daily in the Chavadi and during the Chithirai festival,
Panakaram is being offered to all the devotees participating in the said
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festival. With the income derived from the first item of the 2 nd schedule,
every year Chithirai month, during the festival of Sri Mariamman festival,
Arulmigu Mariamman Deities are invited to the Chavadi and Poojas are
performed and prasathams are being distributed to all the devotees
participating in the said poojas. With the income from the first item of 2nd
schedule, every year on the last Saturday of Puratasi month in the Chavadi,
“Aganda Nama Jega Yagnam” was performed and prasatham was also
distributed to all the devotees.
3.5 Further details of the other charities were done from the 3rd item
of the 2nd schedule, which is a madam in the Vettai Venkatesa Perumal
Temple and to the said Madam, on the 3rd Saturday of Puratasi month, Lord
Vettai Venkatesa Perumal Deity was invited and Mandagapadi and poojas
were performed and Annathanam is given to the devotees. With the income
of the said schedule, poojas are performed in the Karuppasamy Temple
situated in the premises of Vettai Venkatesa Perumal Koil on every
Saturday of Puratasi month and the monthly salary of the Poosari of the
said Karuppasamy Temple is paid. From the income derived from the first
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item of the 2nd schedule, sugarcane is given as prasatham to all the cows
and bulls brought by the farmers to the Muthalamman Temple on Mattu
Pongal day in the month of Thai every year. On Mattu Pongal day,
Mariamman Deity was invited there and poojas are performed.
3.6 From the above, it is clear that the land is dedicated and set apart
for religious charities. Therefore, the tenancy of the said land was covered
in the petition, which is part of the settlement deed dated 20.11.1935 is
exempted under clause (f) of Sub-section 3 of Section 1 of the Act. Hence,
no benefit can be claimed as per the Act and the petition has to be dismissed
in limine.
D. The Enquiry:
4. On behalf of the petitioners, P.W -1 was examined and Ex.P1 to
P-13 were marked; on behalf of the respondent, R.W.1 to 4 were examined
and Ex.R1 to R26 were marked.
E. The Arguments:
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5. Heard, Mr.S.Kadarkarai, learned counsel appearing on behalf of
the petitioners/tenants and Mr.R.Suriya Narayanan, learned counsel
appearing on behalf of the respondent/landlord.
5.1 Mr. S. Kadarkarai, the learned counsel appearing on behalf of the
petitioners would submit that it can be seen that the suit is filed for
ejectment of the tenant. Therefore, the tenancy is in respect of the vacant
land and admittedly it is only the original petitioner herein who has put up
the superstructure, and therefore, the act confers two benefits on the
petitioners.
(i) Firstly, in case of ejectment, Section 3 of the Act enjoins that the
compensation be assessed and paid to the tenant in respect of the
superstructure, in the event of the tenant being vacated from the building.
(ii) This apart Section 9 gives a right to the tenant entitled to
compensation and against whom a suit for ejectment has been instituted, to
apply to the Code, within one month after the service of summons that the
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landlord shall be directed to sell for a price to be fixed by the court, the
whole or part of the extent of the land specified in the application.
5.2 Therefore, the present petition is filed under section 9 of the Act.
The entire premises is necessary for running of rice mill business. He would
submit that the Act is very much applicable to the respondent, who is only a
Pannai and the property is a joint undivided family’s property. The
respondent is not a religious institution or religious charity. On the other
hand, they are members of the same family. The suit property jointly
belongs to all of them. They are the beneficiaries of the properties. Ex. R.1,
dated 20.11.1935 especially in paragraphs Nos.1 to 4 clearly shows that the
document is nothing, but a family arrangement between the family members
for managing the family properties on a turn basis until they partition the
property. Eventhough the schedule mentioned property is not partible, still it
is only for the expenses of the family. Just because some activities are also
mentioned as if they will light up the lamp etc., the same is on behalf of the
family and predominantly for the benefit of the family and that will not
change the character of the family arrangement into a religious institution or
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religious charity.
5.3 He would submit that Section 9 is also applicable in respect of
trust properties, even considering the respondent as a trust. The learned
counsel further relying upon the cross-examination of R.W.1 would submit
that the properties are said to be enjoyed by the 24 members belonging to 4
families. He has also admitted that all the properties to date belong to the 4
families only. Further, it is an admitted fact that except for the small
Pillayar temple, there are no other temples situated inside the property. He
has categorically admitted that in respect of the properties mentioned in the
2nd schedule also, unless the family permits, no other person can enter the
property and the property has been fenced and managed only by the family
members and there is no other religious structure or deity. Except for 20
plants in the Nandavanam, there are no other religious structures. As per
Ex.R.1, the family has to conduct 4 meetings per year and despite cross-
examination, minutes of the said meetings and the book contained therein
were not produced before this court. During the examination of R.W.2, he
also made a similar admission. R.W.2 specifically admitted that even in
paragraph 4(C) of Ex.R.1, it is specifically mentioned that the income can
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be spent for the common benefit of the family. To a further question, he has
categorically mentioned that the common benefit means, it will be the
benefit of the family of the Dayadhi Pannai. He has also admitted that even
in respect of the property near the Vettai Perumal Koil, they have developed
the same into a Kalyana Mandapam and have been rented out to the
common public. He has also admitted that there are no signatures in Exs.R.2
to 25 and as such, they were not originally filed and suddenly appeared after
the amendment came into force and when the CTOP was pending. As such
these documents should be rejected.
5.4 The learned counsel in support of his submission would rely upon
the Judgment of the Full Bench of this Court in N.Sreedharan Nair and
Ors., Vs. Mottaipatti Chinna Pallivasal Muslim Jamath and Ors.1,
wherein even while upholding the validity of the amending act 2 of 1996, it
has been held that so far as Section 3 is concerned, the right to
compensation is not taken away. Therefore, he would pray that when the
respondent as such is not a religious institution and when the purpose in
respect of schedule 2 is also predominantly is only for the welfare of the
1 2003 (2) CTC 129
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family, the amending act would not apply to the respondent and therefore,
the petition is to be allowed.
5.5 He would fairly admit that as far as the value of the land is
concerned, since originally, it was mentioned in the petition at Rs.80/- per
cent about the year 1979 and when in the earlier round, the Trial Court has
assessed the value and the amount was deposited, the same was also set
aside in the Civil Miscellaneous Appeal, the Original Petition may be
allowed, by ordering the sale of the property to the petitioners and an
Advocate Commissioner / Engineer expert can be appointed for
ascertainment of the market value of the property and the petitioners
undertake to pay such market value as may be ascertained by this Court.
5.6 Mr.R.Surya Narayanan, the learned counsel appearing on behalf
of the respondent would submit that Ex.R.1 would make it abundantly clear
that the property in question is impartible and inalienable. The income from
the property can be only used for religious purposes. Therefore, even though
the respondent is only a family trust, as far as the Schedule 2 properties are
concerned, it is a religious charity. As per the amending Act, the
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applicability of the Act in respect of any religious institution or religious
charity belonging to Hindu, Muslim, Christian or any religion is excluded.
The term ‘religious charity’ is also defined in the explanation. Religious
charity would mean a public charity associated with a religious festival or
observance of a religious character, whether it be connected with any
religious institution or not. Further, the amending Act categorically makes it
clear that the amendment would apply even to the pending proceedings and
every proceeding initiated by the tenants, and it is pending concerning the
property in which it will apply shall abate. In view thereof, the present
petition is also to be dismissed as having abated by operation of law.
5.7 He would take this Court in detail through the deposition of R.W.
1 & R.W.2. The petitioners’ side cross-examined them in detail and even
after cross-examination it could be seen from the evidence on behalf of the
respondent that the income from the property is used only in respect of
religious charity. The learned counsel would more specifically rely upon
paragraphs Nos. 2 to 6 of the proof affidavit filed on behalf of R.W.1 to
bring home in detail as to the religious charity performed in respect of the
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property and would therefore state that the property in question should be
exempted from the purview of the Act. In support of his submissions, the
learned counsel would place strong reliance on the judgment of the Hon'ble
Supreme Court of India in Idol of Sri Renganathaswamy Vs.
P.K.Thoppulan Chettiar and Ors.2, where under the Hon'ble Supreme
Court of India considered the earlier judgement in this regard in paragraphs
Nos.13 to 17 and held that if the charity is to feed the people, who are
pilgrims in any festival, the same would be public charity for religious
purpose. The Supreme Court has held that the charity if associated with the
Hindu festival or concerning any festival, would be enough to be termed a
religious charity and for that purpose, who administers the charity is not a
relevant question. The only necessary thing is whether or not there exists a
nexus between their charitable work and the occurrence of the festival. The
learned counsel would also rely upon the judgment of this court in Sree
Siddhi Budhi Vinayakar Sree Sundareswaraa Devasthanam and Ors.
S.V.Marimuthu.3 (1962 SCC Online Mad 231), whereunder the explanation
under Section 9 was also considered about the applicability of the Act, in
2 AIR 2020 SCC 4369
3 1962 SCC Online Mad 231
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respect of a trust. He would therefore pray that the Original Petition should
be dismissed as having abated by operation of law.
5.8 He would fairly submit that even though the value of the
superstructure was mentioned concerning the year 1979 in the plaint, now
for the ejectment of the tenants, the respondent herein is willing to pay the
market value of the superstructure and both sides learned counsel are also
ad idem about the fact that the value of the superstructure has to be
ascertained in the suit by appointing an expert engineer and the respondent
also undertake to pay such compensation to the petitioners herein.
F. The Questions:-
6. I have considered the rival submissions made on either side and
perused the pleadings and the evidence on record. Upon consideration
thereof, the following questions arise for consideration.
I. Whether or not the present petition is to be dismissed as having
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abated by operation of law?
II. If not, whether the petitioners are entitled to claim that the
respondent should sell the entire suit property to the petitioners?
III . If the petitioners are entitled to the relief directing the
respondents to sell the entire suit property/part thereof, in favour of the
petitioners, what is the sale price to be paid by them?
G. Question – I:
7. The suit in O.S.No.224 of 1979, now renumbered as TOS. (MD)
No.1 of 2024 is filed for ejectment of the original first petitioner/tenant from
the suit property. It is the admitted case of the parties that the land in
question, which is described in the suit schedule as well as the schedule to
the original petition, belongs to the respondent. It is the admitted case of the
parties that the same was leased out to the original first petitioner in the
Original Petition, and thereafter, other petitioners herein being the legal
heirs are the lessees in respect of the property in the vacant land.
Admittedly, the original first petitioner put up the rice, flour and oil mills
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and other facilities for his business. Therefore, the provisions of the Madras
City Tenants’ Protection Act are applicable. There is also no quarrel over
the fact that the Rajapalayam Town is also an area notified under the Act.
Section 2(2) defines ‘land’ and 2(3) defines ‘landlord’, and section 2(4)
defines ‘tenant’ which are extracted hereunder for ready reference:-
“Section 2 (2)‘Land’ does not include buildings;
Section 2 (3) ‘Landlord’ means any person owning any land,
and includes every person entitled to collect the rent of the
whole or any portion of the land, whether on his own account
or on behalf of or for the benefit of any other person, or by
virtue of any transfer from the owner or his predecessor in title
or of any order of a competent Court or of any provision of
law;
[Section 2 (3-A) ‘municipal town’ includes the City of
Madurai;]
Section 2 (4) ‘Tenant’ in relation to any land –
(i) Means a person liable to pay rent in respect of such land,
under a tenancy agreement express or implied, and
[(ii) includes-
(a) any such person as is referred to in sub-clause (1) who
continues in possession of the land after the determination of
the tenancy agreement,
(b) any person who was a tenant in respect of such land under
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a tenancy agreement to which this Act is applicable under sub-
section (3) of Section 1 and who or any of his predecessors in
interest had erected any building on such land and who
continues in actual physical possession of such land and
building, notwithstanding that-
(1) such person was not entitled to the rights under this
Act by reason of the proviso to Section 12 of this Act as it stood
before the date of the publication of the Madras City Tenants'
Protection (Amendment) Act, 1972 (Tamil Nadu Act 4 of 1972),
or
(2) a decree for declaration or a decree or an order for
possession or for similar relief has been passed against such
person on the ground that the proviso to Section 12 of this Act
as it stood before the date of the publication of the Madras City
Tenants' Protection (Amendment) Act, 1972 (Tamil Nadu Act 4
of 1972) disentitled such person from claiming the rights under
this Act, and
or sub-clause (ii) (a) or (ii) (b),
(c) the heirs of any such person as is referred to in sub-clause
(i) or sub-clause (ii) (a) or (ii) (b), but does not include a sub-
tenant or his heirs;]
7.1 Therefore, it would be clear that originally the deceased first
petitioner and thereafter, the other petitioners herein are tenants within the
meaning of the Act. Once the petitioners are the tenants within the meaning
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of the Act, then Section 3 is applicable. Section 3 is extracted hereunder:-
“3. Payment of compensation on ejectment.- Every tenant
shall on ejectment be entitled to be paid as compensation the
value of any building, which may have been erected by him, by
any of his predecessors in interest, or by any person not in
occupation at the time of the ejectment who derived title from
either of them, and for which compensation has not already been
paid. A tenant who is entitled to compensation for the value of any
building shall also be paid the value of trees which may have been
planted by him on the land [and of any improvements which may
have been made by him].”
7.2 Therefore, it would be clear that a tenant on ejectment will be
entitled to be paid as compensation, for the value of the building. Section 4
mandates that in a suit for ejectment against the tenant, in which the
landlord succeeds, according to the ascertainment of the compensation
payable under Section 3 and the decree in the suit shall decree the amount
so found due and direct that on payment by the landlord into the Court
within 3 months of the amount so found due, the tenant put the landlord into
possession of the land. Section 5 prescribes the procedure for determining
the compensation awardable under Section 4 and the modalities of fixing
the value of the building and trees. Apart from other benefits, section 9
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grants a right for the tenant to approach the Courts within one month from
the date of receipt of the summons, in any suit for ejectment apply to the
court for an order that the landlord be directed to sell the property, price to
be fixed by the court, the whole or part of the extent of the land specified in
the application. The entire Section 9 is extracted hereunder for ready
reference:-
“9.Application to Court for directing the landlord to sell land-
(1) [(a) (i)] Any tenant who is entitled to compensation under
Section 3 and against whom a suit in ejectment has been instituted or
proceeding under Section 41 of the Presidency Small Cause Courts
Act, 1882 (Central Act XV of 1882), taken by the landlord may,
[within one month of the date of the publication of the Madras City
Tenants Protection (Amendment) Act, 1979 in the Tamil Nadu
Government Gazette or of the date with effect from which this Act is
extended to the municipal town, township or village in which the land
is situate,] or within [one month] after the service on him of
summons, apply to the Court for an order that the landlord shall be
directed [to sell for a priceto be fixed by the Court, the whole or part
of, the extent of land specified in the application.] [* * * *].
[(ii) Notwithstanding anything contained in clause (a) (i) of
this sub- section, any such tenant as is referred to in sub-clause (ii)
(b) of clause (4) of Section 2 or his heirs, may within a period of two
months from the date of the publication of the Madras City Tenants'
Protection (Amendment) Act, 1973 apply to the Court [whether or
not a suit for ejectment has been instituted or proceeding under
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Section 41 of the Presidency Small Cause Courts Act, 1882 (Central
Act XV of 1882) has been taken by the landlord or whether or not
such suit or proceeding is pending] having jurisdiction to entertain a
suit for ejectment or in the City of Madras either to such Court or to
the Presidency Small Cause Court, for an order that the landlord
under the tenancy agreement shall be directed to sell for a price to be
fixed by the Court the whole or part of the extent of land specified in
the application.]
[(b) On such application, the Court shall first decide the
minimum extent of the land which may be necessary for the
convenient enjoyment by the tenant. The Court shall, then, fix the
price of the minimum extent of the land decided as aforesaid, or of
the extent of the land specified in the application under clause (a),
whichever is less. The price aforesaid shall be the average market
value of the three years immediately preceding the date of the order.
The Court shall order that within a period to be determined by the
Court, not being less than three months and not more than three
years from the date of the order, the tenant shall pay into Court or
otherwise as directed the price so fixed in one or more instalments
with or without interest.]
(2) In default of payment by the tenant of any one instalment,
the application '[under clause (a) of sub-section (1)] shall stand
dismissed, provided that on sufficient cause being shown, the Court
may excuse the delay and pass such orders as it may think fit, but not
so as to extend the time for payment beyond the three years above-
mentioned. On the application being dismissed, the Court shall order
the amount of the instalment or instalments, if any, paid by the tenant
to be repaid to him without any interest.
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2[(3) (a) On payment of the price fixed under clause (b) of
sub-section (1), the Court shall pass an order directing the
conveyance by the landlord to the tenant of the extent of land for
which the said price was fixed. The Court shall by the same order
direct the tenant to put the landlord into possession of the remaining
extent of the land, if any. The stamp duty and registration fee in
respect of such conveyance shall be borne by the tenant.
(b) On the order referred to in clause (a) being made, the suit
or proceeding shall stand dismissed, and any decree or order in
ejectment that may have been passed therein but which has not been
executed shall be vacated.
Explanation.- 'Land' means the interest of the landlord in the land
and all other interests which he can convey under any power and
includes also the full interest which a trustee can convey under the
power possessed by him to convey trust property when necessity
exists for the same or the alienation of the property is for the benefit
of the estate or trust.]
[(3-A) Notwithstanding anything contained in clause (b) of
sub- section (3) of this section or in Section 5 of the Madras City
Tenants' Protection (Amendment) Act, 1972 (Tamil Nadu Act 4 of
1972), or any other law for the time being in force, the Court which
passed the decree or order referred to in sub-clause (ii) (b) (2) of
clause (4) of Section 2, shall, on application made by the tenant
referred to in that sub-clause within a period of two months from the
date of the publication of the Madras City Tenants' Protection
(Amendment) Act, 1972, reopen or review the proceedings relating to
such decree or order and may pass a decree or an order that the
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tenant referred to in the said sub- clause, is entitled to the rights
under this Act and pass such other supplemental, incidental or
consequential orders as are necessary for the purpose as if the
Madras City Tenants' Protection (Amendment) Act, 1973, were in
force at the time at which the decree or order was passed.]”
7.3 Therefore, in the present suit, originally the O.P.No.139 of 1979
which was thereafter re-numbered as C.T.O.P.No.13 of 1983, was rightly
filed. However, pending the above application the Madras City Tenants’
Protection Act was amended by the Tamil Nadu Act 2 of 1996 by the same
Section 1 regarding the applicability of the Act was further amended and the
amended Section 1 (3) reads as follows:-
“(3)This Act shall apply,-
(a)in the areas in which this Act is in force on the date of the
publication of the [Chennai][Substituted for the word 'Madras' by
the City of Madras (Alteration of Name) Act, 1996 (Tamil Nadu Act
28 of 1996).]City Tenants' Protection (Amendment) Act, 1979 in the
Tamil Nadu Government Gazette, only to tenancies of land created
before that date; and
(b)in any other area, only to tenancies of land created before
the date with effect from which this Act is extended to such area by
notification under clause (b) of sub-section (2):]
[Provided that nothing contained in this Act shall apply to tenancies
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of land owned-
(a) in the City of Chennai, by the Corporation of [Chennai],
(b) in any other municipal area, by the municipal council
concerned,
(bb)[ in any township, by the township committee concerned,][This
clause was inserted by section 3 of the Madras City Tenants
Protection (Amendment) Act, 1979 (Tamil Nadu Act 2 of 1980)
deemed to have come into force on the 9th January 1974.]
(c) in any area in a district as defined in the [Tamil Nadu]
[These words were substituted for the word 'Madras' by the Tamil
Nadu Adaptation of Laws Order, 1969, as amended by the Tamil
Nadu Adaptation of Laws (Second Amendment) Order, 1969, which
came into force on the 14th January 1969.]District Boards Act, 1920
([Tamil Nadu][The Panchayats Act, 1958 (Tamil Nadu Act XXXV of
1958) was repealed by the Tamil Nadu Panchayats Act, 1994 (Tamil
Nadu Act 21 of 1994) and the later Act is in force now.]Act XIV of
1920)], which is comprised within the local limits of a panchayat
constituted under the [Tamil Nadu][These words were substituted
for the word 'Madras' by the Tamil Nadu Adaptation of Laws Order,
1969, as amended by the Tamil Nadu Adaptation of Laws (Second
Amendment) Order, 1969, which came into force on the 14th January
1969.]Village Panchayats Act, 1950 ([Tamil Nadu][The Panchayats
Act, 1958 (Tamil Nadu Act XXXV of 1958) was repealed by the Tamil
Nadu Panchayats Act, 1994 (Tamil Nadu Act 21 of 1994) and the
later Act is in force now.]Act X of 1950) or of a panchayat or
panchayat union constituted under the [Tamil Nadu][These words
were substituted for the word 'Madras' by the Tamil Nadu
Adaptation of Laws Order, 1969, as amended by the Tamil Nadu
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Adaptation of Laws (Second Amendment) Order, 1969, which came
into force on the 14th January 1969.]Panchayats Act, 1958 (Tamil
Nadu Act XXXV of 1958)[The Panchayats Act, 1958 (Tamil Nadu Act
XXXV of 1958) was repealed by the Tamil Nadu Panchayats Act,
1994 (Tamil Nadu Act 21 of 1994) and the later Act is in force now.],
by the panchayat or by the panchayat union council concerned,
(d)in the case of all areas in a district defined as aforesaid,
which are not comprised within the local limits of such panchayat or
panchayat union by the district board concerned, and
(e)by the Board of Trustees for the improvement of the City of
Madras constituted under the Madras City Improvement Trust Act,
1950 (Madras Act 37 of 1950):][Section 162 of the Tamil Nadu State
Housing Board Act, 1961 (Tamil Nadu Act 17 of 1961) has repealed
the Madras City Improvement Trust Act, 1950 (Madras Act 37 of
1950). Consequently, by virtue of section 12 of the former Act, the
Board of Trustees for the Improvement of the City of Chennai shall
stand dissolved and all its assets and liabilities shall stand
transferred to the Tamil Nadu State Housing Board.]
[Provided further that nothing contained in this Act shall apply to
tenancies of land vested or deemed to be vested in, or acquired by,
the Board of Trustees of the Port of Chennai under the Major Port
Trusts Act, 1963 (Central Act 38 of 1963).
(f)[ by any religious institution or religious charity belonging
to Hindu, Muslim, Christian or other religion.
Explanation. - For the purpose of this clause,-
(A)"religious institution" means any-
(i)temple;
(ii)math;
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(iii)mosque;
(iv)church; or
(v)other place by whatever name known,
which is dedicated to, or for the benefit of, or used as of right by, any
community or section thereof as a place of public religious worship;
(B)"religious charity" means a public charity associated with a
religious festival or observance of religious character (including a
wakf associated with a religious festival or observance of religious
character), whether it be connected with any religious institution or
not:]
[Certain pending proceedings to abate.— (3) Every proceeding
instituted by a tenant in respect of any land owned by any religious
institution or religious charity belonging to Hindu, Muslim,
Christian or other religion and pending before any Court or other
authority or officer on the date of the publication of this Act in the
Tamil Nadu Government Gazette, shall, in so far as the proceeding
relates to any matter falling within the scope of the principal Act, as
amended by this Act, in respect of such land, abate, and all rights
and privileges which may have accrued to that tenant in respect of
any such land and subsisting immediately before the said date shall
in so far as such rights and privileges relate to any matter falling
within the scope of the principal Act, as amended by this Act, cease
and determine and shall not be enforceable :
Provided that nothing contained in this section shall be deemed to
invalidate any suit or proceeding in which a decree or order passed
has been executed or satisfied in full before the said date.][This
proviso was added by section 2 of the Chennai City Tenants'
Protection (Amendment) Act, 1975 (Tamil Nadu Act 25 of 1975).]”
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(emphasis supplied)
7.4 Thus, it can be seen that by sub clause (f) to the proviso, the
provisions of the Act will not apply to a religious institution or religious
charity belonging to the Hindu, Muslim, Christian or other religion. It can
be seen that the term ‘religious charity’ is also specifically defined
concerning the Act, to mean a public charity associated with the relevant
festival or observance of a religious character (including a wakf associated
with a religious festival or observance of a religious character), whether it
be connected with any religious institution or not. It can further be seen that
even though the amendment was brought in the year 1996, the rights
accrued to the tenants even before the coming into force of the Act, in
respect of the pending proceedings is also expressly extinguished and such
proceedings, which are pending under the Act shall abate.
7.5 The Act was also put into challenge before this Court including
the ground of retrospective operation and the validity came to be upheld by
the full bench of this court in Sreedharan Nair’s case1 (cited supra). The
Hon'ble Full Bench of this Court had categorically held that the entitlement
which is conferred under section 9, in the event of filing of a suit for
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ejectment cannot be termed as a ‘vested right’ and therefore, the
retrospective application of the Act was upheld.
7.6 As far as Section 3 is concerned, the right to receive
compensation being elective on the part of the landlord, a specific question
was also framed by the Full Bench of this Court, whether the tenant would
lose the said right for compensation also and held that the right conferred
under Section 3 would also be negated by the amendment. However, the
rights of the tenants in respect of the compensation would be governed by
the general law and as per the terms of the agreement. The entire paragraph
No.58 of the said judgment is extracted hereunder:-
“58. From the above principles laid down by the Apex
Court it could be seen that wherever the rights have been conferred
on an individual under the statute or beneficial legislation, there is
no vested right on the beneficiary. It is always open to the
legislature depending upon the exigencies to amend the Act either
by extending the benefits or withdrawing the benefits conferred
under the statute. In such cases, the withdrawal of those benefits by
way of amendment would amount to repealing of the beneficial
enactment. Then the right granted under the statute can be taken by
way of amendment. When such withdrawal is made, whatever the
benefits are conferred on the individuals under the beneficial law
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will be taken away. The beneficial law being for particular period
and for particular area and particular tenancies, it is for the
legislature either to extend the same to the area or not. Because of
the beneficial legislation the general law governing the rights and
obligations of the parties is kept in abeyance. Once such benefit is
withdrawn by way of amendment either fully or partially, then so
far as those who are not covered under the beneficial legislation
are concerned, their rights will be governed under the general law.
Hence in our considered view, by virtue of the exemption granted
under amended Act 2 of 1996 in respect of the tenancies relating to
the religious institutions, the right of the tenant to get the
compensation under the Principal Act is taken away. But, however,
the rights of the tenants in respect of the compensation would be
governed by virtue of the general law and as per the terms of the
agreement.”
7.7 A specific issue regarding the validity of Section 3 of the
amending Act whereby, the amendment was applied to the pending
proceedings was also dealt with from paragraph No.65 onwards and in
paragraph No.77, it was held that by abatement of the proceedings, it does
not in any manner affect the rights of the tenants. Paragraph No.77 is
extracted hereunder:-
“77. It can be seen that the determination of the
compensation is not a vested right also as there is no obligation on
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the part of the landlord to pay such compensation. In such
circumstance, we have no hesitation to hold that Section 3of
amending Act 2 of 1996 does not affect any of the rights of the
tenants by virtue of the abatement of the pending proceedings.
Hence the said provision is also valid.”
7.8 Therefore, there is no quarrel between both sides learned counsel
that the dictum of the Full Bench of this Court holds the field and therefore,
if the Act became inapplicable on account of the amending Act, then the
same is also applicable to the pending proceedings, and therefore the tenants
will be entitled neither to the benefit under Section 3 nor to the benefit
under section 9 and the application under section 9 will abate. The
compensation will be determined only as per the general law and the terms
of the agreement between the parties in the main suit for ejectment.
7.9 Therefore, the next question arises as to whether the respondent is
right in invoking the amending Act. It is to be decided whether the act
would be inapplicable on the ground that the subject matter is a religious
charity.
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7.10 To determine the said question, first, the nature of the document
in Ex.R.1 which is relied upon by the respondent has to be determined. The
registered document dated 20.11.1935 bearing Document No. 230 of 1936
proclaims that it is executed by 24 persons, viz., P.S.Sankar Raja and 23
others. It proclaims itself as a “brl;oy;bkz;l; j!;jhnt$;”.
7.11 After mentioning the names of the 24 persons, it reads as
follows:-
“ehk; ,Ugj;jp ehY ngh;fSk; vGjpf;bfhz;l brl;oy;bkz;l;
j!;jhbt$; vd;dbtd;why; ,jd; jgrpy; 1. 2. bc&l;a{y; brhj;Jfs; ekf;Fk;
ek; "hjpfSf;Fk; g{h;tPf brhe;jkha; ghj;jpag;gl;litfs;/ nkw;go brhj;Jfis
ek;kpy;
1 Kjy; 5 Koa yf;fkpl;lth;fspd; FLk;gj;ij nrh;e;j "hjpfspd; Kd;dth; ?
6 Kjy; 11 Koa yf;fkpl;lth;fspd; FLk;gj;ij nrh;ej; "hjpfspd;
Kd;dth; ? (2)
12 Kjy; 16 Koa yf;fkpl;lth;fspd; FLk;gj;ij nrh;e;j "hjpfspd; Kd;dth;
? (3)
,k;K:d;W FLk;g!;jh;fs; ,uz;L ghfkhft[k;. 17 Kjy; 24 Koa
yf;fkpll; th;fspd; FLk;gj;ij nrh;ej; "hjpfspd; Kd;dth; xU ghfkhft[k;
Mf K:d;W ghf';fshf buhk;g fhykha; mDgtpj;J te;jpUf;fpnwhk;/
jgrpy;fz;l nkw;go brhj;JfSf;F ek; "hjpfs; rk;ge;jg;gl;l gy
FLk;g!;jh;fs; ghj;jpa!;jh;fshfapUg;gjpdhYk; nkw;go brhj;Jfis moapy;
fz;lgof;Fs;s tpjuiz bra;a ntz;oapUg;gjhYk; ehk; vy;nyhUk;
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Vnfhgpj;J bra;J bfhs;fpw jPh;khdkhtJ.
1/nkny fz;l ek; 24 ngh;fspd; g';F xd;Wf;F 6 bkk;gh;fs; tPjk;
bkhj;jk; 18 egh;fs; eph;thf rigf;F $Ptpa (life) bkk;gh;fshf ek;kpy;
1?k; egh; g{/m/r';fhh; uh$h ?1
2?k; egh; g{//r/Fkhurhkp uh$h ?2
4?k; egh; g{//bg/bry;yk; rf;f uh$h ?3
5?k; egh; g{//y/Rg;g uh$h ?4
6?k; egh; g{//J/rf;f uh$h ?5
7?k; egh; g{//eh/uh$p uh$h ?6
8?k; egh; g{//rp/rpd;ida uh$h ?7
10?k; egh; g{//K/Jiur;rhkp uh$h ?8
12?k; egh; g{//R/rpd;d bt';fl;l uh$h ?9
13?k; egh; g{//m/r";rPtp uh$h ?10
14?k; egh; g{//m/r";rPtp uh$h ?11
15?k; egh; g{//rp//bgUkhs; uh$h ?12
18?k; egh; g{//r/Rg;g uh$h ?13
19?k; egh; g{//rp/f/Rg;g uh$h ?14
20?k; egh; g{//rp/F/Rg;g uh$h ?15
21?k; egh; g{//y/itahg[hp uh$h ?16
24?k; egh; g{//R/rh/fe;jrhkp uh$h ?17
23?k; egh; g{//y/r";rPtp uh$h ?18
ngh;fis Vw;gLj;jpapUf;fpnwhk;/
nkw;go eph;thf bkk;gh;fs; me;je;j bfho tHp "hjpfSf;F
gpuepjpfshfthh;fs;/
2/ nkw;go eph;thf rig bkk;gh;fspy; Kiwna g';fhrhug;gof;F xU
bkk;gh; tUc&h tUc&k; khnd$p'; bkk;guhf ,Ue;J tu ntz;oaJ/
3/ nkny fz;l eph;thf rig bkk;gh;fspy; ahnuDk; xUth; fhyk;
brd;whYk;. Jfjpaw;wth;fshf Vw;gl;lhYk;. tpyfpf; bfhz;lhYk; mth;fSf;F
gjpyhf mnj bfho tHpapy; nrh;e;j jFjpa[ss
; tiu vy;yh eph;thf
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bkk;gh;fSk; nrh;e;J njh;e;njLj;J bfhs;s ntz;oaJ/
4/a/ tUc&h tUc&k; tUfpw khnd$p'; bkk;gh; nkw;go eph;thf
rig bkk;gh;fspd; jPh;khdg;go jgrpy; brhj;Jfis nkw;ghh;j;Jk; tph;j;jp
bra;Jk; rhpahd Mjutpd; nghpy; fl;L Fj;jif KjyhditfSf;F
milj;Jk;. Tut[ bryt[ fzf;Ffis xH';fha; itj;Jk; tuntz;oaJ/
b/ 1?tJ bc&l;a{y; brhj;Jfis ehk; Vnfhgpj;J gphpj;Jf;bfhs;Sk;
fhyk;tiu mjpy; fpilf;fpw tUk;gofis mg;nghijf;fg;nghJ ek;
g';fhspfSf;F g';fhrhug;go gphpj;J bfhLj;J tuntz;oaJ/
c/ 2?tJ bc&l;a{y; brhj;ij ehKk;. ek; "hjpfSk; vf;fhyj;jpYk;
gphpj;Jf; bfhs;tjpy;iyahjyhy; guhkhpj;J mjd; tUk;goapypUe;J 2?tJ
bc&l;a{ypy; fz;l rh;nt 131 eph; epyj;jpypUf;fpw ee;jtdk;. mjpYs;s fpzW.
klk;. ,itfSf;F mg;nghijf;fg;nghJ bra;a ntz;oa ghpghydk;
hpg;ngh; ,itfisa[k; gJg;gisak; fpuhk;k rf;fuh$h nfhl;ilapYs;s 2?tJ
bc&l;a{ypy; fz;l ek; bghJ rhtoapy; md;whlk; jPgk;. hpg;ngh; tifawh
bryt[fisa[k; ntl;il bt';fnlrbgUkhs; nfhapypy; ekf;F ghj;jpag;gl;l 2?
tJ bc&l;a{ypy; fz;l klj;jpd; hpg;ngh; bryt[fisa[k; ek; bghJ
ed;ikf;F tUfpw bryt[fisa[k; ekJ Mr;rhh;a Rthkpfspd;
fhzpf;iffSf;Fk; epht
; hf rig bkk;gh;fspd; jPh;khdj;jpd;nghpy; bra;J
bfhs;s ntz;oaJ/ U:/10 tiu nkw;go khnd$'; bkk;gh; jd; brhe;j
mgpgg; puhaj;jpy; bryt[ bra;J bfhs;s mUfija[ilath;/”
7.12 It is also relevant to extract Clause 9, which reads as follows:-
“9/ ,jd; 2?tJ bc&l;a{y; brhj;Jfisa[k; ,dpnky; mjw;F tUk;
brhj;Jfisa[k; ehKk; ek; g';fhspfSk; vf;fhyj;jpYk; vt;tpj guhjPdKk; bra;a
ghj;jpak; fpilahJ/”
7.13 Item 1 of 2nd schedule reads as follows:-
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“ II ?tJ bc&l;a{y;
1/ nkw;go o/,uh$ghisak; rg;o ,uh$ghisak; fpuhkj;jpy; mad;
g[d;bra; rh;nt 131 eph; Vf;fh; 13 brz;L 24?y; bjd;fhrp nuhl;Lf;Fk;
tlf;F. ,dhk; flk;gd;Fsk; fpuhkk; vy;iyf;Fk; nkw;go ek;ghpy; FoapUg;g[f;F
tplo; Uf;fpw Rkhh; brz;L 70?y; cs;s epyj;Jf;Fk; fpHf;F bfhz;lnehp fyp';fy;
Xilf;Fk; ghijf;Fk; bjw;F nkw;go fyp';fy; Xilf;Fk; ghijf;Fk;. ej;jk;
g[wk;nghf;Ff;Fk; nkw;F ,jw;Fl;gl;l Vf;fh; 12 brz;L 54?k; nkw;go
ek;ghpypUf;fpw fpzWfs; K:d;Wk; fhiuklk; e;ejtdk; tifawht[k; mjpYs;s
tpUr;r';fSk;/”
7.14 Both sides learned counsel admit that the property mentioned in
the schedule to the petition as well as the suit forms part of the first item of
the 2nd schedule. It can be seen that though the document is called as a
settlement document, with respect to the first schedule properties, it is
nothing but a family arrangement between the members of the Hindu
undivided joint family as to how they have to manage the properties and
divide the income for the benefit of the family.
7.15 As far as the schedule 2 items of the properties are concerned the
same is held to be impartible and inalienable and are permanently dedicated
for the respective purposes which are mentioned in the document.
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Therefore, the document in Ex.R.1 is partly a deed of family arrangement
and partly a deed of trust. The immovable property is dedicated to particular
purposes. The nomenclature of the document is not conclusive and the
recitals of the document have to be read as a whole the intention of the
executant and the effect of the document have to be understood while
determining the nature of the document. The same is no longer res integra
and useful reference in this regard can be made to the Judgments of the
Hon’ble Supreme Court of India has held as follows:-
1. Namburi Basava Subrahmanyam vs. Alapati Hymavathi and
Ors.,4
2. Infrastructure Leasing and Financial Services Ltd. vs. HDFC
Bank Ltd. and Ors.5
3. Yellapu Uma Maheswari and Ors. v. Buddha Jagadheeswararao
and Ors.6
4. Assam Small Scale Ind. Dev. Corporation Ltd. and Ors. v. J.D.
Pharmaceuticals and Anr.7
5. V. Lakshmanan v. B.R. Mangalagiri and Ors.8
6. Super Poly Fabriks Ltd. v. Commissioner of Central Excise,
Punjab9
4 Manu/SC/0564/1996
5 Manu/SC/1166/2023
6 Manu/SC/1141/2015
7 Manu/SC/1206/2005
8 Manu/SC/0976/1995
9 Manu/SC/1959/2008
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7. M.R. Vinoda vs. M.S. Susheelamma (D) by L.Rs. and Ors.10
7.16 In Namburi Basava Subrahmanyam's case4 (cited supra). the
Hon’ble Supreme Court has held as follows:-
“3. The only question is the interpretation of the deed Ex. B-1. It
is true, as rightly contended by Smt. K. Amareshwari, learned Senior
counsel for the respondents, that the nomenclature of the document is not
conclusive. This recitals in the document as a whole and the intention of
the executant and acknowledgment thereof by the parties are conclusive.
The court has to find whether the document confers any interest in the
property in praesenti so as to take effect inter vivos and whether an
irrevocable interest thereby, is created in favour of the recipient under
the document, or whether the executant intended to transfer the interest
in the property only on the demise of the settlor. “
(emphasis supplied)
7.17 Further, in Infrastructure Leasing and Financial Services Ltd's
case5 (cited supra), it has been held by the Hon'ble Supreme Court of India
as follows:-
“26. The effect of these documents is what the court is
concerned with. It is a known principle of contract interpretation,
that the substance of a document, is discernible from its terms,
rather than the label or its nomenclature. In Yellapu Uma
Maheswari and Ors. v. Buddha Jagadheeswararao and Ors.
10 Manu/SC/1294/2021
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MANU/SC/1141/2015 : 2015 (11) SCR 849, the court held:
“It is well settled that the nomenclature given to the
document is not decisive factor but the nature and substance of the
transaction has to be determined with reference to the terms of the
documents and that the admissibility of a document is entirely
dependent upon the recitals contained in that document but not on
the basis of the pleadings set up by the party who seeks to introduce
the document in question.”
In Assam Small Scale Ind. Dev. Corporation Ltd. and Ors. v.
J.D. Pharmaceuticals andAnr.MANU/SC/1206/2005: 2005 (4) Suppl.
SCR 232 the court stated as follows:
The nature of transaction is required to be determined on the
basis of the substance there and not by the nomenclature used.
Documents are to be construed having regard to the contexts thereof
wherefore 'labels' may not be of much relevance.
This was also stated in V. Lakshmanan v. B.R. Mangalagiri
and Ors.MANU/SC/0976/1995 : 1994 Supp (6) SCR 561 (that the
"nomenclature or label given in the agreement as advance is not
either decisive or immutable."). This principle of substance, over the
form, was followed in Super Poly Fabriks Ltd. v. Commissioner of
Central Excise,Punjab MANU/SC/1959/2008 : 2008 (6) SCR 1076.
27. That one document is styled or described in a certain
manner, or that it uses a certain expression, or term is not
conclusive; it is the effect of all the terms, of the documents, which
bring out the true purport and intention of the parties. Likewise,
another allied principle of contract interpretation, is that where the
transaction is not the subject of one document, but several, which
refer to each other, or a reading of all, describe the entire contract,
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then, it is open to the court to consider all of them together. This
principle was stated in S. ChattanathaKarayalar v. The Central
Bank of India and Ors.MANU/SC/0003/1965 : 1965 (3) SCR 318
wherein this Court held that:
“The principle is well-established that if the transaction is contained
in more than one document between the same parties they must be
read and interpreted together and they have the same legal effect for
all purposes as if they are one document. In Manks v. Whiteley,
[1912] 1 Ch. 735 Moulton, L.J. stated:
Where several deeds form part of one transaction and are
contemporaneously executed they have the same effect for all
purposes such as are relevant to this case as if they were one deed.
Each is executed on the faith of all the others being executed also
and is intended to speak only as part of the one transaction, and if
one is seeking to make equities apply to the parties they must be
equities arising out of the transaction as a whole.”
(emphasis supplied)
7.18 In, M.R.Vinoda's case10 (cited supra), The Hon'ble Supreme
Court of India has held as follows:-
“29. The question of a transaction being void or, for that
matter, the validity of the relinquishment in this case, much
depends on the facts. It is an inquiry into the determination of
relevant facts bought onto the record for the perusal of the court.
The nature of transaction is required to be determined based on the
substance and not the nomenclature of the deed. Documents are to
be construed having regard to the context thereof whereof labels
given to them will not be of much relevance. In the light of the
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factual position of this case as discussed above, we do not think
that the relinquishment deed, even if there be a debate as to the
legal necessity or lack of benefit, can be declared and treated as
null and void.”
(emphasis supplied)
7.19 Thus, it can be seen that the nature of Ex.R.1 has to be
considered by this Court by reading the document as a whole. A reference in
this regard to the illuminating work of Justice B.K.Mukherjea titled ‘The
Hindu Law of Religious and Charitable Trusts”, Tagore Law Lectures, 152
Edn., is appropriate. The same is referred to and relied upon in several
judgments and has been hailed as a “seminal work” and “locus
classicus” (Bijesh Kumar M. and Ors. vs. State of Kerala and Ors.11). In
the opening chapter, he defines religious and charitable trusts, by examining
English law, Roman Law, and contrasting it with Hindu Law. He defines a
religious and charitable trust in a succinct manner before going into the
specifics:
“A trust would be denominated a religious or charitable
trust, if it is created for purposes of religion or charity. Two things
therefore require to be considered in this connection viz. (1) what
are religious and charitable purposes? and (2) what is a
11 Manu/KE/3643/2020
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trust?” (paragraph 1 - page4)
Justice Mukherjea then considers the words religious and charitable,
“Now religion is absolutely a matter of faith with individuals or
communities, and it is not necessarily theistic (e.g. Buddhism). All that we
understand by religious purpose is that the purpose or object is to secure the
spiritual well being of a person or persons according to the tenets of the
particular religion which he or they believe in. This may imply belief in a
future state of existence where a man reaps the fruits of his pious acts done
in this world, and it may be connected with the idea of atonement for past
errors of a man and that of making peace with his Maker”
By charity on the other hand is meant benevolence, and in its wide
and popular sense it comprehends all forms of benefit, physical, intellectual,
moral or religious bestowed upon persons who are in need of
them.”(paragraph 4 - page2)
After analysing the English law relating to trusts, he contrasts it with
Hindu Law:
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“…if you take “Trust” in its broad and general sense as signifying
a fiduciary relation under which a person in possession of or
having control over any property is bound to use that property for
the benefit of certain persons, or specified objects, obviously there
are trusts in Hindu Law. A shebait in charge of a temple, or a
mohant having control over a religious institution, would be a
trustee in this general sense. …[I]n a trust property created for
charitable purposes, the beneficial ownership may be regarded as
vested in the human beneficiaries, or where the beneficiaries are
indeterminate, in the religious or charitable purpose, or in the
institution or foundation itself conceived of as a juristic entity and
capable of bearing rights and duties. Whoever may be regarded as
the beneficial owner in law, the trustee who is in possession of the
trust property, and is entrusted with the duty of applying it for
particular purposes, cannot be its owner, and the obligation can be
enforced against him in such manner as the law lays
down.”(paragraph 2 - page7)
After this, he delves into the niceties of Hindu conception of religion
and charity; Istha and Purttaand concludes thus:
“In the Hindu system, there is no line of demarcation between
religion and charity. On the other hand, charity is regarded as part
of religion…The position therefore is that in theHindu system,
religion and charity overlap each other and do not admit of any
differentiation. They are both integral parts of ‘Dharma’ or the rule
of righteousness which the Hindu sages regard as the upholder of
the entire fabric of the universe, both in its physical and moral
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aspects.”(paragraph 2 - page14)
Justice Mukherjea lists four essentials of a valid religious and
charitable trust under Hindu Law:
“In order that a proper and legally enforceable trust of this
description may be created, it is essential in the first place, that the
object or purpose of the trust must be a valid religious or charitable
purpose according to the rules of law by which the Hindus are
governed at the present day. It is necessary in the second place that
the founder or settlor should be capable, under Hindu law, of
creating a trust in respect of the particular property which is the
subject matter of trust. The third requirement is that the settlor
should indicate with sufficient precision the purpose of the trust and
the property in respect of which it is made, and the trust must also
comply with the requirements of law as regards the fourth in which
it is to be made. The last element is that the trust must not be
opposed to the provisions of any law for the time being in force, an
infringement of which makes it void or voidable in law.”(paragraph
1 - page52)”
7.20 Further, the Hon'ble Supreme Court of India in the case of Ram
Saroop Dasji vs. S.P.Sahi12 defined and distinguished between public and
private trusts and the relevant portion is extracted hereunder:-
“To put it briefly, the essential distinction is that in a public
12 Manu/SC/0175/1959
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trust the beneficial interest is vested in an uncertain and fluctuating
body of persons, either the public at large or some considerable
portion of it answering a particular description; in a private trust the
beneficiaries are definite and ascertained individuals or who within a
definite time can be definitely ascertained. The fact that the uncertain
and fluctuating body of persons is a section of the public following a
particular religious faith or is only a sect of persons of a certain
religious persuasion would not make any difference in the matter and
would not make the trust a private trust.”
7.21 In this regard, the recent Judgment of the Hon'ble Supreme
Court of India in the Idol of Sri Renganathaswamy's case2 (cited supra)
can be copiously extracted, as it decided an identical question and
paragraphs Nos.13 to 18 are extracted hereunder:-
“13.During the lifetime of Thoppulan Chettiar, the
charitable activities were financed out of the income arising from the
suit property. However, the deed of settlement makes no mention of
the income arising out of the suit property and instead creates an
obligation on the settlor's legal heirs to fund the charitable activities
out of their own business incomes. Therefore, in the present case, no
question arises of any endowment of “money” and we only have to
deal with the question of whether the suit property itself was
endowed. Accordingly, we now analyse the provisions of the deed
and turn to the question of whether the suit property was endowed,
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and if it was, whether such endowment was in favour of a specific
temple or for the performance of “religious charity”.
14.The term “endow” means to give or bequeath a thing,
property or otherwise. Where the text of the deed purports to divest
the property from the settlor and reserves it for a charitable purpose,
the property has been endowed. In certain cases, an endowment may
not be absolute towards the charitable purpose and may reserve
some portion of the property or resultant income from the property
for the legal heirs of the settlor. The question of whether the settlor
intended the religious purpose to be the primary beneficiary subject
to a charge in favour of the legal heirs of the settlor, or whether the
heirs were the primary beneficiaries subject to a charge towards the
continuation of the charitable purpose must be determined by
reading the settlement deed as a whole.
15.In Menakuru Dasaratharami Reddi v. Duddukuru Subba
Rao [Menakuru Dasaratharami Reddi v. Duddukuru Subba Rao,
AIR 1957 SC 797] , a Constitution Bench of this Court dealt with the
question of whether the suit properties were the subject-matter of a
public charitable trust or were merely charged with the obligation to
undertake specific charities. P.B. Gajendragadkar, J. (as the learned
Chief Justice then was), speaking for the Court, held : (AIR p. 800,
para 5)
“5. … Now it is clear that dedication of a
property to religious or charitable purposes may be
either complete or partial.If the dedication is complete,
a trust in favour of public religious charity is created. If
the dedication is partial, a trust in favour of the charity
is not created but a charge in favour of the charity is
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attached to, and follows, the property which retains its
original private and secular character. Whether or not
dedication is complete would naturally be a question of
fact to be determined in each case in the light of the
material terms used in the document.
In such cases it is always a matter of
ascertaining the true intention of the parties; it is
obvious that such intention must be gathered on a fair
and reasonable construction of the document considered
as a whole. The use of the word “trust” or “trustee” is
no doubt of some help in determining such intention; but
the mere use of such words cannot be treated as decisive
of the matter.
Is the private title over the property intended to
be completely extinguished? Is the title in regard to the
property intended to be completely transferred to the
charity? The answer to these questions can be found not
by concentrating on the significance of the use of the
word “trustee” or “trust” alone but by gathering the
true intent of the document considered as a whole.”
(emphasis supplied)
16.The deed of settlement must be examined as a whole to
determine the true intention of the settlor. Where the settlor seeks to
divest himself of the property entirely for a religious purpose, a
public religious charity is created. In the present case, the deed of
settlement creates an absolute prohibition on the subsequent sale or
mortgage of the suit property. The deed of settlement provides that,
“the settlor purchased the punja land mentioned in the schedule of
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property… for the performance of charity work in reference to Sri
Renganathanswamy sanctum”. The property outlined in the schedule
of the deed of settlement is described as, “property allotted for
charity work”. With respect to the legal heirs, the deed of settlement
creates an obligation on the settlor's legal heirs to continue the
charitable activities at the suit property out of their business
incomes. The settlor had a clear intent to divest himself and his legal
heirs of the property and endow it for the continuation of the
charitable activities at the suit property. The purpose of the
endowment was to carry on charitable work. The deed of settlement
obligates the legal heirs to continue the charitable activities at the
suit property.
17.Having established that the deed of settlement created an
endowment for charitable purposes, we now turn to whether the
endowment was a “specific endowment” as defined under Section
6(19) of the 1959 Act. As noted above, a “specific endowment” can
be for either a specific charity or service associated with a
particular math or temple, or alternatively, can be for the
performance of “any other religious charity”. Some guidance on
how to distinguish an endowment to a particular temple and a
“religious charity” generally can be found in the 1959 Act itself. The
term “religious charity” has been defined in Section 6(16) as
follows:
“6. (16)“religious charity” means a public charity
associated with a Hindu festival or observance of a religious
character, whether it be connected with a math or temple or not;”
The definition also clarifies that a “religious charity” may be
distinct from a charity associated with a particular temple, and for a
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charity to constitute a “religious charity”, there is no requirement
for the public charity to be connected with a particular temple or a
math. In terms of the statutory definition, for a charity to constitute a
“religious charity” under the 1959 Act, two conditions must be met.
First, it must be a “public charity” and second, it must be
“associated with” a Hindu festival or observance of a religious
character. If these two conditions are satisfied, a charity is a
“religious charity”.
18.The distinction between a public and private charity was
set out by a Constitution Bench decision of this Court in Ram Saroop
Dasjiv.S.P. Sahi [Ram Saroop Dasjiv.S.P. Sahi, 1959 Supp (2) SCR
583 : AIR 1959 SC 951] . In that case, the Court had to determine
whether the Bihar Hindu Religious Trusts Act (1 of 1951) applied to
both public as well as private trusts. It described the difference
between public and private charities as follows : (AIR p. 956, para
6)
“6. … it is necessary to state first the distinction in
Hindu law between religious endowments which are public
and those which are private. To put it briefly,the essential
distinction is that in a public trust the beneficial interest is
vested in an uncertain and fluctuating body of persons, either
the public at large or some considerable portion of it
answering a particular description; in a private trust the
beneficiaries are definite and ascertained individuals or who
within a definite time can be definitely ascertained.The fact
that the uncertain and fluctuating body of persons is a section
of the public following a particular religious faith or is only a
sect of persons of a certain religious persuasion would not
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make any difference in the matter and would not make the
trust a private trust….”
(emphasis supplied)
7.22 Thus, it can be seen that if the beneficiaries are the
devotees/public at large attending the Hindu festivals and concerning
religious practices, the same would be religious public charity. At the risk of
repetition, the specific definition under the Act concerning the term
“religious charity” is again extracted hereunder for ready reference:-
“(B)"religious charity" means a public charity associated
with a religious festival or observance of religious character
(including a wakf associated with a religious festival or observance
of religious character), whether it be connected with any religious
institution or not:]
7.23 Thus, the religious charity need not be connected with any
religious institution. It has to be a public charity associated with a religious
festival or observance of a religious character. In this regard, it can be seen
from paragraph No.4 (c) of Ex.R.1, which is extracted supra that the income
from the petition mentioned property has to be used for lighting the lamp in
the common Chavadi and for repair and upkeep of the Madam in the
Arulmigu Vettai Venkatesa Perumal Temple for donation of the Aachariyar
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Swamy and to maintain the Nandavanam, Well, which are in the suit
property itself. Apart from the same, Clause 4(c) contains a clause that the
income can also be utilized for the common benefit expenses. Further, it can
be seen that the property is impartible and inalienable. Therefore, it can be
concluded that the immovable property contained in the 2nd schedule is
dedicated, by creating a trust for the purposes mentioned therein.
7.24 A proper reading of the oral evidence of R.W's.1 and 2 and the
documentary evidence on record concerning R2 to 24 categorically proves
that the various ways in which the income from the property is being
utilized as per the directives contained in clause 4(c), the purposes are
certainly religious and charitable. The beneficiaries are the undefined
devotees/public at large.
7.25 On a reading of the proof affidavit and the cross-examination of
R.W's.1 and 2, this Court records its appreciation to R.W's.1 and 2 of their
clear and candid admission of facts concerning the questions put in the
cross-examination. The sanctity of trial rests only on such truthful
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witnesses. Their evidence as such commands the fullest confidence of the
Court and as such is believed. The nature of the religious purposes, which
are mentioned by R.W's.1 and 2 was narrated in detail in the additional
objections filed by them, which is also narrated in detail supra and therefore,
are not repeated here. It is true that paragraph No.4(c) of the Ex.R.1 also
states that the expenses can also be used for general expenses and it is
evident from the lines, “ek; bghJ ed;ikf;F tUfpw bryt[fisa[k; .
7.26 On the reading of paragraph No.4 (c), on the whole, it would be
clear that the properties are predominantly used only concerning the public
charity. Even if there is some private purpose to be achieved in the trust, the
definition of the term 'religious charity' clearly does not insist that the trust
itself is of religious nature. So long as there is a public charitable purpose in
the suit property, even if it is held by private persons, still the same is
exempted from the purview of the Act.
7.27 The intention behind the amendment Act can be ascertained that
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when charities are being conducted by Hindus, Muslims, or persons of other
religions for their religious purposes, merely because the properties are
rented out to tenants, they should not be forced to sell the property to the
tenants and the properties shall continue to yield recurring income so that
the pious objects are carried on perpetually.
7.28 It can further be seen that the property is made as inalienable by
Ex.R.W.1. Therefore, only because the mandate under section 9 could even
force a sale, which right is inherently not there in the landlord/trustees to
part away with the property, the amendment had come into force. In this
regard, it can be seen that before the amendment, the explanation to section
9 is incorporated concerning trusts and the same is extracted supra. It is
explained as the power possessed by him to convey the trust property when
necessity exists for the same or the alienation of the property is for the
benefit of the estate or trust. Though it has been interpreted by a Division
Bench of this Court in Sree Siddhi Budhi Vinayakar Sree Sundareswaraa
Devasthanam's case3 (cited supra) that the necessity or otherwise need not
be looked into, once the tenants apply, even the trust has to automatically
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sell the property, it can be seen that the amending Act is intending to save
the charitable activities that are conducted by any person being a Hindu,
Muslim or belonging to other religion for their religious purposes.
7.29 Paragraph 4(c) of Ex.R-1, categorically enjoins the respondent's
trust to carry out charities that are religious within the definition as
contained in the Act. For all the above reasons, I hold that for the purposes
of the Schedule 2 properties contained in Ex.R1, including for the purposes
of the petition mentioned property/ the suit mentioned property, the
respondent is a trust carrying on a religious charity within the definition of
the Act and as such, the provisions of the Act would not apply. Even the
pending application, which is filed by the petitioners/tenants, would fall
within Section 3 of the amending Act, and thereby the rights accrued to the
original first petitioner and thereafter to his legal heirs, the other petitioners
stood extinguished by operation of law.
H. The Result:
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8. Accordingly, the present proceedings in the Original Petition have
to be closed as having been abated. Given the answer to Question- I, the
other questions need not be answered. In the result, the TCTOP (MD) No.1
of 2024 is dismissed, as having abated by operation of law. No costs.
08.08.2024
Jer
Neutral citation : Yes/No
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D.BHARATHA CHAKRAVARTHY, J.,
Jer
Pre-Delivery Order made in
08.08.2024
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