Judge Baratha Chakravarthy #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.
- 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.
- 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.
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 5th petitioner, impleaded as per the
order in I.A.No.343 of 2001 dated 05.02.2013) … Petitioners
Vs.
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 3rd, 6th and 7th petitioners for a price to be fixed by 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 NarayananORDER
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 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 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 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 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 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:
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 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 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 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 2nd 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 festival. With the income derived from the first item of the 2nd 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 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:
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 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 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 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. , 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 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 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 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 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 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 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 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 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 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 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.
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 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 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 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;
(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).]”
(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 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 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 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.
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; ? (1)
6 Kjy; 11 Koa yf;fkpl;lth;fspd; FLk;gj;ij nrh;e;j “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;fkpl;lth;fspd; FLk;gj;ij nrh;e;j “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; 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$p’; bkk;guhf ,Ue;J tu ntz;oaJ/
3/ nkny fz;l eph;thf rig bkk;gh;fspy; ahnuDk; xUth; fhyk; brd;whYk;. Jfjpaw;wth;fshf Vw;gl;lhYk;. tpyfpf; bfhz;lhYk; mth;fSf;F gjpyhf mnj bfho tHpapy; nrh;e;j jFjpa[s;stiu vy;yh eph;thf bkk;gh;fSk; nrh;e;J njh;e;njLj;J bfhs;s ntz;oaJ/
4/a/ tUc&h tUc&k; tUfpw khnd$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$h nfhl;ilapYs;s 2?tJ bc&l;a{ypy; fz;l ek; bghJ rhtoapy; md;whlk; jPgk;. hpg;ngh; tifawh bryt[fisa[k; ntl;il bt’;fnlrbgUkhs; nfhapypy; ekf;F ghj;jpag;gl;l 2?tJ bc&l;a{ypy; fz;l klj;jpd; hpg;ngh; bryt[fisa[k; ek; bghJ ed;ikf;F tUfpw bryt[fisa[k; ekJ Mr;rhh;a Rthkpfspd; fhzpf;iffSf;Fk; eph;thf rig bkk;gh;fspd; jPh;khdj;jpd;nghpy; bra;J bfhs;s ntz;oaJ/ U:/10 tiu nkw;go khnd$’; bkk;gh; jd; brhe;j mgpg;gpuhaj;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:-
“ 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 tpl;oUf;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. 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
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. 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, 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 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 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:
“…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 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 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, 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 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 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 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 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 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 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 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 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:
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.
08.08.2024Jer
Neutral citation : Yes
D.BHARATHA CHAKRAVARTHY, J.,
Jer
Pre-Delivery Order made in
T.C.T.O.P. (MD) No.1 of 2024
08.08.2024
