Madras High Court
Sami Arul Educational Trust vs S.Peter on 8 May, 2025
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
1 S.A.(MD)NO.692 OF 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 28.10.2024
PRONOUNCED ON : 08.05.2025
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.692 of 2014
Sami Arul Educational Trust
rep.by its Managing Trustee,
L.B.S.Yadhav,
Pilaiyarpatti, Vallam,
Thnajavur Taluk ... Appellant / Respondent /
Defendant
Vs.
S.Peter ... Respondent / Appellant / Plaintiff
Prayer: Second Appeal filed under Section 100 CPC against the
judgment and decree dated 29.04.2014 in A.S No.70 of 2012 on the file
of the Principal District Judge, Thanjavur reversing the judgment and
decree dated 28.08.2012 made in O.S No.290 of 2010 on the file of the
Principal Subordinate Judge, Thanjavur.
For Appellant : Mr.S.Parthasarathy, Senior Counsel
for Mr.V.Balaji
For Respondent : Mr.Sricharan Rangarajan,
Senior Counsel
for Mr.D.Selvanayagam
1/15
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2 S.A.(MD)NO.692 OF 2014
JUDGMENT
The defendant in OS No.290 of 2010 on the file of the
Principal Sub Court, Thanjavur is the appellant in this second appeal.
2.S.Peter, the respondent herein filed the said suit for
declaration and recovery of possession and for permanent injunction.
The suit was dismissed vide judgment and decree dated 28.08.2012.
Challenging the same, the plaintiff filed A.S No.70 of 2012 before the
Principal District Judge, Thanjavur. The first appellate court reversed
the decision of the trial court and decreed the suit as prayed for on
29.04.2014. Challenging the same, the defendant filed SA(MD)No.692
of 2014. It was dismissed on 16.04.2015. Questioning the same, the
defendant filed Civil Appeal No.6595 of 2016. The Hon'ble Supreme
Court set aside the judgment of the High Court since substantial
questions of law were not answered. The matter was remitted back.
On 20.07.2016, the second appeal was formally admitted on the
following substantial questions of law :
“1.Whether the judgment of the first appellate
court reversing the judgment of the trial court in respect
of the suit A schedule property suffers from the vice of
perversity for not having considered the material evidence
on record such as admissions of PW.1 in the cross
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examination, Ex.B21 to Ex.B23 and the seal found affixed
in Ex.A1.
ii.Whether the suit was liable to be dismissed
since the plaintiff failed to seek the relief of declaration in
respect of B schedule property.
iii.Whether the plaintiff has proved the
possession of B schedule property as on date of filing of
the suit?.”
3.The learned Senior Counsel appearing for the appellant
reiterated all the contentions set out in the grounds of appeal and also
the written arguments and called upon this Court to answer the
substantial questions of law in favour of the appellant and set aside the
impugned judgment and restore the decision of the trial court. Per
contra, the learned Senior Counsel appearing for the respondent
submitted that the impugned judgment is a well reasoned and that it
does not call for any interference. He also filed written notes of
arguments. Both sides relied on a catena of case laws in support of
the various propositions advanced by them.
4.The case of the plaintiff is as follows :
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The plaintiff purchased the suit items 1 and 2 vide sale deeds
dated 05.11.2004 and 06.07.2005 for valuable consideration.
Subsequently, patta was also transferred in his name. The plaintiff was
the Chairman and managing trustee of Sami Arul Educational Trust,
Pillaiyarpattti near Vallam. Subsequently, he resigned from the board.
The suit properties are his private properties and not that of the said
trust. On 12.02.2007, the plaintiff came to know that the trust was
putting up structures on the A schedule property. Hence, the suit was
filed for declaration that the plaintiff is the absolute owner of the suit
schedule properties and for delivery of possession of the A schedule
property after removing the superstructures and for permanent
injunction restraining the defendant from interfering with the plaintiff's
possession of the B schedule property.
5.The defendant filed written statement controverting the
plaint averments. The claim that the plaintiff purchased the suit items
under two different sale deeds was denied. He had purchased the suit
properties only in his capacity as managing trustee and President of
Sami Arul College and that the suit properties belong only to the trust.
The plaintiff resigned from the board in September 2005. The ledger
maintained by the trust would indicate that the cash flow for purchase
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of the properties went from trust account. The plaintiff is not in
possession of the suit schedule properties. In A schedule, there are
buildings. The plaintiff himself in his legal notice has admitted that
the defendant is in possession of the B Schedule property. But no
declaration of title as regards the B schedule property has been sought
for. The plaintiff himself applied to the local body for permission to
construct a building for the college. The plaintiff did not implead the
trust as a party defendant. The defendant called for dismissal of the
suit.
6.Based on the rival pleadings, the trial court framed the
necessary issues. On the side of the plaintiff, the plaintiff himself
examined as PW.1. Two other witnesses have been examined on his
side. Exs.A1 to A20 were marked. On the side of the defendant, one
Dhanapal, principal of the college, was examined as RW.1. After
consideration of the evidence on record, the trial court dismissed the
suit. But the first appellate court reversed the decision and decreed
the suit as prayed for.
7.I carefully considered the rival contentions and went
through the evidence on record. “A” schedule property was purchased
under Ex.A1 sale deed dated 05.11.2004. As early as on 10.04.2002,
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the trust passed Ex.B4 resolution for purchasing the “A” schedule
property measuring 1 acre and 88 cents from S.Thirugnanam of
Pillaiyarpatti. Vide Ex.B2 resolution dated 25.09.2004, the plaintiff was
co-opted and appointed as the managing trustee of Sami Arul
Educational Trust. The said resolution also referred to the proposed
purchase of the “A” schedule property. When the plaintiff was
examined as PW.1, he admitted the contents of these two resolutions.
It is true that the plaintiff has been shown as the purchaser in Ex.A1 but
he has been specifically described as the managing trustee of Sami Arul
Educational Trust. In every page of the sale deed, the seal of the trust
has been specifically affixed above the plaintiff's signature. More than
anything else, the stamp papers were purchased in the following
name : “Peter, Managing Trustee, Sami Arul Educational Trust,
Pillaiyarpatti”. If Peter, the plaintiff had purchased the property in his
individual name, there was no need for him to purchase the stamp
papers by describing him as the managing trustee of the suit trust. This
shows the intention behind the transaction. Admittedly, the plaintiff is a
a resident of Chennai. He is running educational institutions in Chennai.
The description found in the stamp paper as well as the sale deed
therefore becomes relevant. It was the plaintiff who applied to the
local body seeking approval for construction of a ladies hostel in “A”
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schedule property. Ex.B9 is the plan for the said building. PW.2 who
had taken the contract for construction of the building deposed that
Ex.B9 was signed by Peter in his capacity as the Chairman of Sami Arul
College. He further stated that it was Peter who prepared Ex.B9. The
plaintiff in fact does not deny having made such an application.
8.It is because of these unimpeachable facts, I am not able to
endorse the contention of the learned Senior Counsel for the
plaintiff/respondent in respect of the “A” schedule property. When the
very purchase of the “A” Schedule property was for the benefit of the
trust and the plaintiff himself took steps to develop the said property for
the benefit of the college, he cannot turn around and set up a rival title.
This is all the more so because he was the erstwhile trustee. The
evidence adduced on either side point to a singular fact ie., “A”
schedule property was meant to be a trust property. It is true that the
plaintiff had shown the purchase of the A schedule property in the
audited balance sheet. But only on that score, the claim of the plaintiff
cannot be upheld. It is quite possible that the consideration for
purchase of the “A” schedule property came only from the plaintiff's
pocket and probably that was why he was inducted as trustee. The
plaintiff also must have infused funds into the trust to facilitate the trust
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activities. Otherwise, there was no reason for coopting the plaintiff and
that too as the managing trustee of the board. The first appellate court
heavily relied on the testimony of PW.3 Kasthuri, the power agent of
Thirugnanam, to come to the conclusion that it was Peter who paid the
consideration and not the trust. In fact, even this conclusion from her
testimony does not appear to be sound. This is because in the latter
part of her cross-examination, PW.3 feigns ignorance. She stated that
it is her husband who will have to be asked as to whether receipt of
payment (Ex.A16) is genuine. The court below asked a wrong question
to itself. The focus must not have been on the flow of funds. Instead,
the question must have been regarding the true nature and purpose of
the transaction. The saying 'he who pays the piper calls the tune' may
not apply in all cases. Hence, there is no need or necessity to examine
the books of account maintained by either side in this regard. Since the
evidence on record clearly indicates that “A” schedule property was
purchased for the benefit of the trust, I hold that the plaintiff is dis-
entitled from maintaining the suit prayer in respect of the “A” schedule
property. The approach of any court must be to protect the properties
of a trust, particularly, when the challenge is mounted by an erstwhile
trustee.
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9.As already mentioned, in each page of the Ex.A1 sale deed,
the seal of the trust has been affixed. This clearly indicates the
intention of the trust was for the benefit of the trust. The plaintiff is
estopped from making any claim on “A” schedule property.
10.However, a different approach is called for in respect of
“B” schedule property. The features that characterised the purchase of
the “A” schedule property are conspicuously absent in the case of “B'
schedule property. If a trust is to purchase a property, it would first
pass a resolution. In the case of “A” schedule property, such a
resolution was in fact passed. No such resolution has been projected in
the case of “B' schedule property. The stamp papers have been
purchased only in the name of “Peter, Chennai”. The trust seal has not
been affixed at the foot of each page of the sale deed Ex.A2 dated
06.07.2005. Of course, one of the descriptions of Peter in Ex.A2 is that
he is the managing trustee of Sami Arul College. He is also described
as the son of Soosaiya Pillai. The sale deed has been executed in
favour of S.Peter and not in favor of the trust. The document is in tamil
and it plainly indicates that the transaction is between two individuals,
namely, S.Peter and T.Santhi. Even though the language of the two
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sale deeds are broadly similar, I adopted a different yardstick for “A”
schedule property because of my conclusion that the transaction was
for the benefit of the college. Such a conclusion was fortified by the
conduct of the plaintiff in submitting a building plan approval for “A”
schedule property. Such circumstances are absent in the case of “B”
schedule property.
11.The title deed in respect of “B” schedule property is with
the plaintiff. It was he who marked the same as Ex.A2. The suit was
filed only in 2007. Peter had left the board in September, 2005 itself.
The trust did not call upon Peter to hand over the original document.
There is no clear evidence on the side of the trust to show that “B'
schedule property was purchased by the trust out of its funds. The only
witness examined on the side of the trust was its Principal. Santhi, the
vendor of “B” schedule property was not examined by the trust. The
sale consideration has been mentioned as Rs.10.00 lakhs. The
appellant is able to point to payment of Rs.1.00 lakh under Cheque No.
2279851 to Thirugnanam, husband of Santhi. But the vendor is not
Thirugnanam, but Santhi. In the plaintiff's audited balance sheet,
purchase of “B” schedule property is reflected. But in the tax returns of
the trust, this purchase is not reflected.
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12.After the purchase, the patta was mutated in the
individual name of the plaintiff. The trust does not appear to have
challenged the same. Merely because in the sale deed, the purchaser's
connection with the suit trust forms part of the description, that cannot
form the basis for conferring title on the trust in the absence of any
other evidence. That was probably why, the learned Senior Counsel
appearing for the appellant trained his guns on the maintainability of
the suit. Relying on the decision of the Hon'ble Supreme Court
reported in (2008) 4 SCC 594 (Anathula Sudhakar v. Buchi
Reddy), he contended that when the title is in dispute, the plaintiff
must seek declaration and cannot maintain a simple suit for injunction.
He also added that when possession is with the defendant, the plaintiff
must have sought the relief of recovery of possession.
13.I am not swayed by the said objection. The learned Senior
Counsel appearing for the plaintiff relies on the judgment rendered in
SA(MD)Nos.550 and 551 of 2008 dated 29.10.2021 (Narendra Kumar
Johar v. A.Shajahan). SLP (Civil) No.7394 of 2022 filed against the
said judgment was dismissed by the Hon'ble Supreme Court on
13.07.2022. When the counsel for the appellant therein argued against
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the maintainability of the suit for having failed to seek the relief of
declaration by relying on Anathula Sudhakar v. Buchi
Reddy(2008) 4 SCC 594, I pointed out that in T.V.Ramakrishna
Reddy vs. M.Mallappa (2021 SAR (Civ) 1009, it was observed that
in Anathula Sudhakar, the Supreme Court in unquivocal terms had held
that where the plaintiff's title is not in dispute or under a cloud, a suit
for injunction could be decided with reference to the finding on
possession. Merely because the defendant questions the plaintiff's title,
that would not necessarily mean that the plaintiff's title is in dispute or
under a clod. The defendant will have to prima facie create a doubt in
the mind of the court that the plaintiff's claim of title is under a serious
cloud. In the case on hand, the defendant trust had not set up an
independent title. On the other hand, the issue turns only on the
construction of the recitals of the sale deed. No complicated question
of fact and law relating to title had really arisen as both the parties
claim to have derived title from one and the same person and that too
one and the same document.
14.It is well settled that if a property is a vacant site, the
principle is possession follows title. If one can show title, it can be
taken that he is in possession. In this case, the plaintiff has
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convincingly and beyond reasonable doubt proved that he has title over
the “B” schedule property. Patta (Ex.A4) also is in his name. This patta
was never challenged by the trust. Since “B” schedule property is a
vacant site, the first appellate court rightly granted the relief of
permanent injunction in favor of the plaintiff in respect of schedule “B”
property.
15.In Ex.A2, it has been mentioned that a sum of Rs.10.00
lakhs was received towards sale consideration from Peter. The Tamil
word used is “jq;fsplkpUe;J”. In translation, it reads as “from you”.
There are several such honorific expressions in Tamil language in the
said sale deed which can only refer to an individual and not an entity.
The use of such expressions is indicative of the fact that the trust is not
the purchaser. There is a clear difference in law between an individual
representing the trust and an individual being described as an office
bearer of the trust. Merely because one of the designations of the
individual was also mentioned, that would not alter the character of the
transaction. Unlike in the case of Ex.A1, in Ex.A2 the seal of the trust
was not affixed.
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16.In this view of the matter, the first substantial question of
law is answered in favour of the appellant/defendant. The second and
third substantial questions of law are answered in favour of the plaintiff.
The impugned judgment and decree of the first appellate court are
modified accordingly. The suit stands dismissed in respect of “A”
schedule property. It shall stand decreed as prayed for in respect of
“B” schedule property. This second appeal is partly allowed. No costs.
08.05.2025
NCC : Yes / No
Index : Yes / No
Internet : Yes/ No
Skm
To:
1.The Principal District Judge, Thanjavur
2.The Principal Subordinate Judge, Thanjavur.
3. The Record Keeper, V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
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G.R.SWAMINATHAN, J.
Skm
08.05.2025
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