Madras High Court
Bhuvaneswari vs Swariz Towraj on 3 January, 2024
S.A.No.1009 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03.01.2024
CORAM:
THE HON'BLE MR.JUSTICE V.LAKSHMINARAYANAN
S.A.No.1009 of 2013 &
M.P.No.1 of 2013 & M.P.No.1 of 2015
1.Bhuvaneswari
2.Maheswari
3.Bhanumathi ammal
4.Malliga
5.Ramachandran
6.Banumathi
7.Minnalkodi
8.Janaki
9.Mageswari
10.Arumainathan @ Rajasimman
11.Sivaganesan
12.Venkatesan
13.Kavitha
14.Chinnayee @ Ananthavalli
15.Kayathri ... Appellants
Vs.
1.Swariz Towraj
2.Thiruchirapalli, Thanjavur Diocese Church of South India,
By its Property Agent M.Jeyaseelan,
S/o. Marimuthu,
https://www.mhc.tn.gov.in/judis
1/37
S.A.No.1009 of 2013
102-A, Addakkara Street,
Manambu Chavadi,
Thanjavur and D.M.C.
3.Church of South India Trust Association, Madras,
Rep. by its Bishop of Madras,
St. Peter's Church,
Mission Church Road,
Thanjavur and D.M.C.
4.Church of South India Trust Association,
Thiruchirappalli, Thanjavur Discesson,
Council rep. by its Power of Attorney,
Discessan Treasurer,
Rev. Suresh Kumar,
S/o. Albert Arockiasamy,
Puthur,
Trichirappalli and D.M.C.
5.Church of South India Trust Association,
Thiruchirappalli, Thanjavur Discesson,
Council rep. by its Power of Attorney,
Discessan Way Secretary,
S.Rajendran,
S/o. Samuel,
Puthur,
Trichirappalli and D.M.C.
6.Stanley ... Respondents
PRAYER: Second Appeal filed under Section 100 of Code of Civil
https://www.mhc.tn.gov.in/judis
2/37
S.A.No.1009 of 2013
Procedure against the decree and judgment passed in A.S.No.16 of 2011 on
the file of the Sub court, Mannargudi dated 02.04.2013 reversing the decree
and judgment passed in O.S.No.50 of 1997 on the file of the Additional
District Munsif, Valangiman at Kumbakonam dated 18.12.2007.
For Appellants : Mr.V.K.Vijayaraghavan
For Respondent 1 : Mr.P.Raja
For Respondent 3 : Mr.P.Parthikannan
For Respondents 4 & 5 : Mr.P.Balamurali
For Respondents 2 & 6 : No appearance
ORDER
The present second appeal arises against the judgment and decree
passed in A.S.No.16 of 2011 on the file of the learned Subordinate Judge,
Mannargudi dated 02.04.2013 in reversing the judgment and decree in
O.S.No.50 of 1997 on the file of the learned Additional District Munsif,
Valangiman at Kumbakonam dated 18.12.2007 and consequently, decreeing
https://www.mhc.tn.gov.in/judis
the suit as prayed for.
2. The appellants before me are the defendants 4 to 6 and 8 to 19.
The suit was presented by the first and sixth respondents.
3. For the sake of clarity and convenience, the parties will be
referred to as per their ranks in the suit.
4. The plaintiffs presented the suit for the following reliefs.
(a) to pass a decree for mandatory injunction
directing the defendants 1 & 2 to take action against the
defendants 3 to 8 in cancellation of the sale deeds and for
vacancy of possession of suit lands.
(b) to pass a decree for permanent injunction
restraining the defendants 3 to 12 and their men, agents and
servants from any manner cultivating the suit lands.
(c) to award costs.
5. The case of the plaintiffs is that the suit schedule mentioned
https://www.mhc.tn.gov.in/judis
property belonged to the Society for Propagation of Gospel (hereinafter
referred to as S.P.G. Mission). S.P.G. Mission merged itself with the Church
of South India and its property started to be managed by the second
defendant/Church of South India Trust Association. The Church of South
India Association alienated the property to the defendants 3 to 19. The
plaintiffs alleged that the alienations were not for proper consideration or
under proper authorisation and therefore, it deserves to be interfered with.
6. Curiously enough in this suit, after having alienated the property
in favour of the private defendants/appellants, the first and second defendants
remained ex parte in the suit. The private defendants/appellants filed written
statement stating that they are the bonafide purchasers of value and they have
purchased the property on 06.10.1987 and 21.08.1987 for true and valid
consideration. They also attacked the frame of the suit and further pleaded
that previously a suit had been instituted by one C.J.Jayanathan and the suit
had been dismissed on 08.01.1991 and since the said suit had been dismissed,
https://www.mhc.tn.gov.in/judis
the present suit is barred by res judicata.
7. The learned trial judge in O.S.No.50 of 1997 had framed the
following issues:
“tHf;Fiu kw;Wk; vjph;tHf;Fiufspd;
mog;gilapy; ,t;tHf;fpy; fPH;fz;l tHf;bfG
tpdhf;fs; tidag;gl;ld:?
1) thjpfs; nfhhpa[s;sthW
braYWj;Jf;fl;lis ghpfhuk; epue;ju cWj;Jf;fl;lis
ghpfhuk; fpilf;ff;Toajh>
2) fpuag;gj;jpuj;ij ePf;fut[ bra;ahjjhy;
jhth brhj;Jf;fis bghWj;J 3 Kjy; 8
gpujpthjpfs; kPJ 1. 2 gpujpthjpfs; eltof;if
vLj;Jf;bfhs;s Koa[kh>
3) 3 Kjy; 8 gpujpthjpfs; jhth
brhj;Jf;fis fuak; bgw chpikapy;iyah>
4) ntW vd;d ghpfhuk; fpilf;Fk;>
TLjy; tHf;bfGtpdhf;fs;:
https://www.mhc.tn.gov.in/judis
1) 13 Kjy; 19 tiuapyhd gpujpthjpfis
bghWj;J tHf;F K:yk; Vw;gltpy;iy vd;W
gpujpthjpfs; brhy;tJ rhpahdjh>
2) tHf;fpy; tpsk;g[if ghpfhuk; nfhuhjjhy;.
tHf;F js;Sgof;F mUfkhdjh>
3) tHf;fpy; 13 Kjy; 19 tiuapyhd
gpujpthjpfis bghUj;J thjpf;F tHf;F ghpfhuk;
fpilf;fj;jf;fjh>
4) 20. 21 gpujpthjpfs; ,e;j tHf;fpw;F
mtrpakhd jug;gpduh>
5) tHf;fpy; nfhhpa ghpfhuk; 20. 21
gpujpthjpfis fl;Lg;gLj;Jkh>”
8. On behalf of the plaintiffs, PW1 and PW2 were examined and
Ex.P1 to Ex.P6 were marked. Similarly on the side of the defendants, DW1 to
DW4 were examined and Ex.D1 to Ex.D19 were marked.
9. After detailed examination of the case, the trial court dismissed
https://www.mhc.tn.gov.in/judis
the suit on 18.12.2007. An appeal was presented by the second plaintiff
nd
alone, arraying the first plaintiff as the 22 respondent in A.S.No.16 of 2011.
Learned Subordinate Judge at Mannarkudi who took up the appeal and
allowed the same on 02.04.2013. She granted the decree for mandatory
injunction as well as permanent injunction. Consequently, the present second
appeal.
10. When the appeal came up for admission, the court framed the
following substantial questions of law for consideration of the appeal:
“ 1. When the lands were sold lawfully by the
competent person as per Ex.B19 and when proper
procedure was adopted in regard to alienations whether
plaintiffs have locus-standi to question the alienation?
2. When the suit was not filed by the plaintiffs in
a representative capacity or under Section 92 of C.P.C,
whether the decree and judgment granted by the appellate
court sustainable in law?
3. When the alienations or the resolution passed
https://www.mhc.tn.gov.in/judis
to sell suit lands were not challenged was the suit as
framed maintainable?
4. When the alienations were beneficial to the
trust and made for the benefit of the trust whether the
decree directing defendants 1 and 2 to take action for
cancellation of sale deeds legal and sustainable?”
11. Heard Mr.V.K.Vijayaraghavan, learned counsel for the
Appellants and Mr.P.Raja, learned counsel for the first respondent.
12. I have carefully gone through the records and heard the
submissions made by the learned counsels on either side.
Locus standi of the plaintiffs:
13. Mr.V.K.Vijayaraghavan would open the argument stating that
the property had been lawfully sold by the competent authority under Ex.D19
and therefore, the plaintiffs do not have locus standi to present the suit.
https://www.mhc.tn.gov.in/judis
14. I am not agreeable to Mr.V.K.Vijayaraghavan on this point,
because the plaintiffs have shown that they are inextricably linked to the
church, which is the parent body for the S.P.G. Mission as well as for the
second defendant/ CSITA. It is well settled position of law that any
worshipper can file a suit and for presentation of such a suit, no such
authorisation is necessary. A recent judgment of the Supreme Court has dealt
with this very issue in M. Siddiq (Ram Janmabhumi Temple-5 J.) v. Suresh
Das, (2020) 1 SCC 1 and the relevant paragraphs are extracted hereunder:
“A suit by a worshipper or person interested
443.There may arise a situation where a shebait has been
derelict in the performance of duties, either by not taking any action or
by being complicit in the wrongful alienation of the endowed property.
In such a situation, where a suit is instituted for the recovery of the
deity's property, the action is against both the shebait and the person
possessing or claiming the property in a manner hostile to the deity. The
remedy for an action against mismanagement simpliciter by a shebait
can be found in Section 92 of the Civil Procedure Code, 1908. However,
where an action against a stranger to the trust is contemplated, the
https://www.mhc.tn.gov.in/judis
remedy is not a suit under Section 92 of the Civil Procedure Code, 1908
but a suit in general law.
444. In Vemareddi Ramaraghava Reddy v. Konduru Seshu
Reddy, AIR 1967 SC 436, the plaintiffs accused the defendants, who
were the managers of the temple and its properties, of mismanagement.
Subsequently, a compromise decree was executed between the
defendants and the Hindu Religious Endowments Board which inter alia
declared the temple properties as the personal property of the
defendants. The plaintiffs sought a declaration under Section 42 of the
Specific Relief Act, 1963 that the provision of the compromise decree
stating that the temple properties were the absolute personal properties
of the defendant was not binding on the temple. The defendants resisted
this contention on the ground that the plaintiffs had no legal interest in
the temple or temple property and were mere worshippers whose suit
could not bind the temple. V. Ramaswami, J. speaking for a two-Judge
Bench of this Court held : (AIR p. 441, para 12)
“12.… As a matter of law the only person
who can represent the deity or who can bring a suit on
behalf of the deity is the Shebait, and although a deity is
a judicial person capable of holding property, it is only
in an ideal sense that the property is so held. The
possession and management of the property with the
right to sue in respect thereof are, in the normal course,
vested in the Shebait, but where, however, the Shebait is
https://www.mhc.tn.gov.in/judis
negligent or where the Shebait himself is the guilty
party against whom the deity needs relief it is open to
the worshippers or other persons interested in the
religious endowment to file suits for the protection of
the trust properties. It is open, in such a case, to the
deity to file a suit through some person as next friend
for recovery of possession of the property improperly
alienated or for other relief. Such a next friend may be a
person who is a worshipper of the deity or as a
prospective Shebait is legally interested in the
endowment. In a case where the Shebait has denied the
right of the deity to the dedicated properties, it is
obviously desirable that the deity should file the suit
through a disinterested next friend, nominated by the
court.”
(emphasis supplied)
445. A necessary adjunct of managing of the temple
properties is the right to sue for recovery of the said properties.
Ordinarily a shebait alone will be entitled to bring a suit on behalf of
the idol. In addition to being convenient and providing immediate
recourse for the idol, it also provides a valuable check against
strangers instituting suits, the outcomes of which may adversely impact
the idol without the knowledge of the idol or the shebait. But there may
https://www.mhc.tn.gov.in/judis
be cases where the conduct of a shebait is in question. In certain cases,
where the shebait itself is negligent or sets up a claim hostile to the idol,
it is open for a worshipper or a next friend interested in protecting the
properties of the idol to file a suit to remedy the situation. In the above
case, by entering into the compromise decree declaring the temple
properties as personal properties of the defendant shebaits, the
defendants set up a title contrary to the title of the idol itself. This Court
held that it was hence permissible for the plaintiffs, who were
worshippers, to maintain a suit invalidating the compromise decree."
Therefore, the first substantial question of law framed by this Court is
answered against the appellants and in favour of the plaintiffs.
Is Section 92 a bar to the present suit?
15. Insofar as the second substantial question of law is concerned,
Mr.V.K.Vijayaraghavan would contend that Section 92 is a bar to the present
suit. Section 92 of the Code of Civil Procedure comes within the chapter
relating to institution of suits of special nature. It comes under Part V of Code
of Civil Procedure, which begins with the heading “SPECIAL
https://www.mhc.tn.gov.in/judis
PROCEEDINGS”.
16. Unless and until a suit comes within the four corners of Section
92 of Code of Civil Procedure i.e., within Sections 92(a) to 92(h), it cannot
be treated as a suit under Part V. A reading of the relief sought for in the
present case shows that it is not covered under any one of the elements of
Section 92. This issue has been dealt with in two Supreme Court judgments;
the first one being Pragdasji Guru Bhagwandasji v. Patel Ishwarlalbhai
Narsibhai, (1952) 1 SCC 323 which was approved and followed in Jamia
Masjid v. K.V. Rudrappa, (2022) 9 SCC 225 wherein it was held as follows:
“37. Pragdasji Guru Bhagwandasji v. Patel
Ishwarlalbhai Narsibhai, (1952) 1 SCC 323 lays down the following
principles on the ambit of a representative suit under Section 92CPC.
37.1. The plaintiff can only seek reliefs that fall under any
of the clauses in Section 92CPC. A declaration that the suit property
belongs to the trust, does not fall under the scope of any of the reliefs
enumerated in Section 92CPC and is outside the scope of the
provision.
https://www.mhc.tn.gov.in/judis
37.2. Merely because the defendant denies the title of the
trust over the suit property, the jurisdiction of the court cannot be
ousted.
37.3. When the title of the trust is contested, a
determination of the title of the suit property is necessary for the
purpose of adjudication on the final relief, and thus it can be made
ancillary to the main relief if the plaintiff is entitled to the relief
sought under Section 92CPC.
37.4. If the plaintiff is not entitled to the relief sought,
then in that case no determination on the title of the suit property can
be made since it would be inconsequential to the final decision in the
suit.
38. On applying the principles evolved in Bhagwandasji
to the facts of the case, the relief sought in the first suit under Section
92CPC was for determination of a scheme of management of the
mosque. A determination of the title of the suit property with respect
to the mosque was ancillary to the main relief, under Section
92CPC."
Therefore, the second substantial question of law is also answered against the
appellants and in favour of the plaintiffs.
Should the plaintiff have sought for declaration?
17. I take up the substantial questions of law 3 and 4 together and
https://www.mhc.tn.gov.in/judis
answer the same.
18. Mr.V.K.Vijayaraghavan would point out that no declaratory
relief had been sought for especially when alienations of the property had
been admitted in the plaint itself. He would draw my attention to Section
25(d) and Section 40 of Tamil Nadu Court Fees and Suit Valuation Act and
would very strongly urge that the declaratory relief seeking to set aside the
sale should have been sought for and without such a relief, the suit is not
maintainable. He would also rely upon the classic judgment of the Supreme
Court in Anathula Sudhakar vs. P. Buchi Reddy (Dead) by Lrs., AIR 2008
SC 2033. In particular, he would draw the attention of this Court to paragraph
13 of the said judgment.
19. Mr.P.Raja would submit that this is a case where the property
belonging to the public trust had been alienated and therefore, no such
declaratory relief is necessary.
https://www.mhc.tn.gov.in/judis
20. I am afraid that I am not in a position to accept the argument of
Mr.P.Raja for a simple reason, that I am dealing with the suit which has been
filed, insofar as it relates to an immovable property. The suit must answer to
the provisions of the Specific Relief Act and the Code of Civil Procedure, if it
doesn't, it has to fail.
21. The relief that the plaintiff ought to have sought for is for
declaration that the sale deed which had been executed in favour of the
appellants/defendants is null and void or not binding on the trust. On the
contrary, all that has been sought for is a simple mandatory injunction
directing the first and second defendants (who had alienated the property in
favour of the private defendants) to take steps for cancellation of the sale
deed.
22. The Transfer of Property Act imposes a burden on the vendor
to ensure that he conveys proper title to his purchasers and defends the title,
https://www.mhc.tn.gov.in/judis
once he has alienated the property in favour of the third party. In other words,
it is the duty of the vendor to convey proper title to the purchaser as held in
the case of Jyoti Prosad Singh Deo vs. H.V.Low & Co. Ltd., 1929 SCC
OnLine Cal 202 and the relevant portion is extracted hereunder:
“There is a further provision in sub-sec. (2)
that the seller shall be deemed to contract with the
buyer that the interest which the seller professes to
transfer to the buyer subsists and that he has power to
transfer the same. From other provisions of this sub-
section it seems to me [though this has been disputed, cf.
Adkesadam v. M.V. Guruatha, 1914 ILR 40 MAD 338]
that this clause contemplates a completed sale and
corresponds to the covenant for title in an English
conveyance. There, can, however, be no doubt that in
India a contract for sale of immoveable property implies
some warranty as to title by the seller. It has been held
in India that defects of title are within the scope of the
clause which requires the seller to disclose to the buyer
any material defect in the property of which the seller is
and the buyer is not aware, and which the buyer could
https://www.mhc.tn.gov.in/judis
not with ordinary care discover [Haji Essa v. Dayabhai,
1895 ILR 20 BOM 522]. Sub-sec. (6) of sec. 55 refers to
the buyer having “improperly” or “properly” declined
to accept delivery of the property. Upon this section I
will make two observations only. It is noticeable that the
section says nothing about the seller delivering an
abstract of title and in India as a whole this practice
does not obtain; the obligation of the seller is to
produce his documents of title for examination by the
buyer if the buyer so requests. Secondly, [at least if my
view of sub-sec. (2) is correct] there is a remarkable
absence in a section which appears to be designed as a
statement of the rights of the parties upon a contract for
sale, of any statement of the cardinal obligation of the
seller—certainly of any statement to the effect that the
seller undertakes to show a good title (by his documents
and his verification of facts) which is a very different
thing: from a mere warranty that the seller has in fact
and in law the estate which he professes to have—a
warranty which would take effect upon proof of
breach.”
https://www.mhc.tn.gov.in/judis
The aforesaid proposition has been reiterated in the following cases:
(a) Panem Venkanarayana Sastry v. Rajupalli Chinna Yella Reddy, AIR
1959 AP 256
"33. Under Section 55(2) of the Transfer of
Property Act, the seller is deemed to contract with the
buyer that the seller has a subsisting interest in the
property sought to be transferred and that he has power to
transfer the same. In Subayya Chowdary v. Veerayya, 1955
Andh WR 502 at p. 525 : ((S) AIR 1957 Andh Pra 307 at p.
323), Chandra Reddy J. (as he then was) on difference
between Subbarao C.J., and Umamaheswaram J., after a
review of several authorities held that the statutory
covenant under Section 55(2) of the Transfer of Property
Act attaches not only to conveyances, but to contracts of
sale as well.
34. So there can be no doubt that the duty of
showing marketable title rests on the vendor...."
(b) Jaswant Rai v. Abnash Kaur, ILR (1974) 1 Del 689.
“....It is the duty of the vendor to inform the
intending purchaser that the property is subject to a claim
https://www.mhc.tn.gov.in/judis
which might result in a law suit or is the subject of a
pending litigation. Any fact calculated to keep the purchaser
in ignorance of the real state of the property is a defect for
which the vendor is liable. In other words a purchaser is not
obliged to take thing essentially different from that which he
agreed to take.
… The purchaser is entitled to a marketable title. A
marketable title, it has been said, is a title which a vendor
would be in a position to force on an unwilling purchaser:
See Shanker Lal v. Jethmel, AIR 1961 Rajasthan 196, 201
(2). If the seller's title is doubtfull and is in dispute in
litigation the purchaser will be quite justified in declining to
carry through the transaction of sale and to accept the
delivery and the court will not in such a case force a
doubtful title upon the purchaser: See Sohan Lal v. Bal
Kishan, AIR 1960 Punjab 275 (3) A title which will expose
the buyer to litigation a hazard is not such a title as could
be forced on an unwilling purchaser. A marketable title is
title free from reasonable doubt.”
23. The vendors in this present case are the first and second
https://www.mhc.tn.gov.in/judis
defendants. It is their duty to protect their alienations made on 06.10.1987 &
21.08.1987 in favour of the private parties. When the Transfer of Property
Act imposes a duty on the vendor, there cannot be a relief of mandatory
injunction which runs contrary to the statute.
24. No court can grant an equitable relief, let alone the highly
equable relief of mandatory injunction contrary to the public policy, which
has been encapsulated in the parliamentary legislation. This was held in
Surajmull Nargoremull vs. Triton Insurance Company Limited, AIR 1925
PC 83.
“ … No court can enforce as valid that which
competent enactments have declared shall not be valid, nor
is obedience to such an enactment a thing from which a
Court can be dispensed by the consent of the parties, or by a
failure to plead or to argue the point at the outset...”
25. The pre-requisites for mandatory injunction are
https://www.mhc.tn.gov.in/judis
(i) To prevent the breach of obligation
(ii) That the court is capable of enforcing
There has to be an obligation on the defendant owed to the plaintiff, so as to
compel performance of the same. The plaintiff in this case is not privy to the
contract. The plaintiff cannot complain of any breach. The relief sought for in
this suit is the anti-thesis of Section 39 of the Specific Relief Act. The court
cannot pass a decree to cause the parties to breach a contractual obligation or
the duty imposed under S. 55 of the TP Act. The said proposition has been
reiterated in the following judgments:
(i) Nandalal Ladia vs. Provudayal Tikriwalla, AIR 1952 Cal 74
“5. Under Sections 54 & 55 of the Specific
Relief Act, the plaintiffs may pray for a perpetual or
mandatory injunction to prevent the breach of an
obligation existing in favour of the plaintiffs.”
(ii) R.Lakshmipathy vs. Madras Gymkhana Club, (1997) 1 CTC
“16. ...To get a mandatory injunction, whether
https://www.mhc.tn.gov.in/judis
permanent or temporary, plaintiff should be specific that
there was a breach of obligation, and certain acts are
necessary to restore the status quo. Learned counsel for
the appellant was at pains to substantiate his case that
there was an obligation on the part of the defendant-
Club, towards the plaintiff. If there is no obligation, the
question of granting any mandatory injunction also does
not arise."
26. To reiterate, when the vendor should have protected the transfer
of title in favour of the purchasers, no court can grant mandatory injunction
stating that the vendor should act contrary to the provisions of Section 55 of
the Transfer of Property Act. Therefore, the frame of the suit itself is bad.
Failure to implead the trust as a party
27. It is the specific plea that the property belongs to the S.P.G.
Mission, which had merged its interest with the Church of South India and
was being managed by the Church of South India Trust Association. Though
https://www.mhc.tn.gov.in/judis
S.P.G. Mission is a trust, it had unfortunately not been made a party to the
suit. The plaintiffs while taking up cudgels on behalf of S.P.G. Mission,
ought to have impleaded the latter as a party to the suit. That not having been
done, it goes to the root of the matter and is hit by the provision of Order I
Rule 13 & Section 99 of Code of Civil Procedure.
Inadequate consideration
28. I have to necessarily agree with Mr.V.K.Vijayaraghavan, where
the consideration has been paid and property has been transferred by way of a
registered sale deed, the fact that the consideration is inadequate cannot be a
ground to set aside the sale. Further, inadequate consideration also does not
arise in the facts and circumstances of the present case in the light of Ex.D17
and D19 which have been filed before the Court. Under Ex.D19, the power of
alienation had been given to CSITA. For ready reference, the said clause is
extracted as follows:
“8 (i) Trust Property shall not be leased,
mortgaged or sold without prior sanction of the Synod
https://www.mhc.tn.gov.in/judis
Executive/Working Committee and the Church of South
India Trust Association. Application for permission to
lease, mortgage or sell Trust property requires the
approval of the Diocesan Executive/Property Committee
before submission to Synod Executive/Working
Committee and the Church of South India Trust
Association.
(ii) Application for permission to sell
properties must include evidence of the valuation of the
property by
a. Urban or Municipal Taxation
Authorities, or
b. Authorised valuer of recognised
Estate Agent, or
c. A certificate stating the value
according to the Guidelines in the Local
Registrar's Office attested by the Treasurer
of the Diocese.
(iii) All Sale/Lease/Mortgage shall be through
competitive tenders, after giving due publicity in the
local papers.
https://www.mhc.tn.gov.in/judis
(iv) If the Sale/Lease/Mortgage is not executed
within one year from the date of approval by the Synod
Executive/Working Committee, fresh proposal of
Sale/Lease/Mortgage shall be submitted by the Diocese.
(v) The Synod Executive/Working Committee
and the Church of South Trust Association may call for
fresh particulars of the property proposed to be sold, if
the Diocesan Executive/Property Committee had not
given such information that are necessary for the
approval of the sale.
(vi) Such approval of the Synod
Executive/Working Committee and the Church of South
India Trust Association shall be final and binding on the
concerned Trustees.
Every sale deed executed by the Attorneys of
the Church of South India Trust Association in favour of-
the-purchaser shall contain the clause stating that the
property has been held by the Church of South India
Trust Association or any other approved Trust for the
benefit of the Church of South India and also the number
https://www.mhc.tn.gov.in/judis
and date of resolution of the Synod Executive/Working
Committee approving the resolution of the Synod
Executive/Working Committee approving the sale.”
29. From the perusal of Ex.D17, it becomes clear that there had
been an authorisation by the first defendant/CSITA. The Trichirapalli
Tanjavur Diocese in its meeting held on 09.02.1984 decided to alienate the
property which is the subject matter of the suit for a sum of Rs.3,00,000/-
together with a donation of Rs.25,000/-. This is in Finance Committee
Resolution number 84 of 1930. In addition, the second defendant/CSITA has
also passed a resolution on 03.09.1983, which is few months prior to the
finance committee resolution authorising the sale of the suit schedule
mentioned property, after calling for advertisement in local dailies. It is not in
dispute that pursuant to Ex.D17 which is in terms of Ex.D19, the properties
had been sold. Therefore, one has to necessarily come to the conclusion that
there had been authorisation by the competent authority to make such
alienations.
https://www.mhc.tn.gov.in/judis
30. If the arguments of Mr.Raja have to be accepted, the competent
authority will pass the resolution for alienations of the property and the
alienations are also carried out, but should be invalidated on the ground of
inadequate consideration or on the ground that “once a trust always a trust”.
This argument does not appeal to me for the simple reason as to how the
association wants to put its financial affairs in order, is entirely the discretion
of the said body. It is theoretically possible and practically seen that the
persons who are the members of the said association might have inter se
disputes between them and this may lead to litigation over properties which
have been properly alienated and backed up by appropriate resolutions. If
such litigations were to find acceptance by the court, it will put the title of the
purchaser in quandary, which does not go well either for the association or
for the purchaser. Therefore, the fact that Ex.D19 followed up by resolution
under Ex.D17 had been passed by the competent authority and in exercise of
these resolutions, alienations had been made, persuades me to hold that the
https://www.mhc.tn.gov.in/judis
alienations were proper and it is not for the plaintiffs to question the same.
31. Above all, I have to refer to Ex.D2 which was marked in the
cross examination of DW2. This is the minutes of the property standing
committee of the Diocese of Thanjavur held on 07.10.1997. Referring to the
alienations of this very property, the Diocese namely, the first defendant has
passed a resolution in the following terms:
“ SADAIYANGAL LAND AND PADRIKOLAM LAND:
No action is necessary from the Diocesan side. If
necessary, the Officers of the Council, the DCC Chairman and
the Property Agent, Tanjore will deal with this matter.”
32. This shows that even after the dispute had commenced between
the parties, the Tanjavur Diocese namely the first defendant was not
interested in seeking to take any action against the alienations. This is
perhaps on the legal advice that the vendor cannot go against the sale that had
been made by it. A reading of the sale deed itself shows that the alienations
https://www.mhc.tn.gov.in/judis
had been made by the first and second defendants in order to benefit the trust.
This is clear from Ex.D19 namely the resolution passed by CSITA on
03.09.1983. When the person in management of the trust comes to the
conclusion that the alienations will be beneficial to the trust, there cannot be a
decree for mandatory injunction directing them to take action for
cancellation.
Delay defeats injunction
33 The alienations had been made in the year 1987. The diocese
council had passed a resolution saying no action is necessary in the year
1997. However, the decree for mandatory injunction had been granted in the
year 2007. I am not holding the delay that has taken place in the disposal of
the suit as against the plaintiffs. However, it is too well settled that the law
comes to the rescue of a person who is vigilant and not dormant. There is no
explanation on the part of the plaintiffs as to why no action had been taken
from the date of alienations in the year 1987 till the presentation of the suit
https://www.mhc.tn.gov.in/judis
in the year 1997. Mandatory injunction should be granted only, where the
plaintiff is extremely vigilant and has approached the court with all
promptitude and not in favour of the person, who has been watching the
proceedings go-by. It will be a travesty of justice to permit reversal of an
action, which has been settled by passage of time.
34. Alienations were made in 1987 & the suit was filed in 1997.
Mandatory injunction is not maintainable if the plaintiff has approached with
delay or has not exercised due diligence as held in Mohinder Kumar &
Others vs. Kamal Prakash & Another, 2020 AIR CC 1215 – Paragraphs
15-30.
35. Now turning to the point on the previous litigation in
O.S.No.214 of 1987, I am not in agreement with Mr.V.K.Vijayaraghavan that
the said suit would be a bar for presentation of the present one. The cause of
https://www.mhc.tn.gov.in/judis
action for O.S.No.214 of 1987 on the file of District Munsif Court,
Thanjavur had occurred prior to the alienations, whereas the cause of action
for the present suit occurred after the said alienations. This one fact is
sufficient to reject the plea that the filing of the suit in O.S.No.214 of 1987 is
a bar for the presentation of the present suit.
36. In the light of the above discussion, I answer the substantial
questions of law 3 & 4 in favour of the appellants and against the
respondents. Therefore, the second appeal is allowed. The judgment and
decree of the learned Subordinate Judge, Mannarkudi in A.S.No.16 of 2011
dated 02.04.2013 is set aside and that of the Additional District Munsif,
Kumbakonam in O.S.No.50 of 1997 dated 18.12.2007 is restored. Since it is
a litigation over the trust property and as the plaintiffs were not agitating
rights, which were personal to them, but were motivated to deal with alleged
public rights involved, I am not imposing any cost on the respondents.
Consequently, connected miscellaneous petitions are closed.
https://www.mhc.tn.gov.in/judis
03.01.2024
nl
Index : Yes/No
Speaking order/Non-speaking order
Neutral Citation : Yes/No
https://www.mhc.tn.gov.in/judis
To
1.The Sub court, Mannargudi
2.The Additional District Munsif, Valangiman at Kumbakonam
https://www.mhc.tn.gov.in/judis
V.LAKSHMINARAYANAN, J.
nl
https://www.mhc.tn.gov.in/judis
03.01.2024
https://www.mhc.tn.gov.in/judis
