IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 18.10.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU Cont.Petition No.1091 of 2008 and S.A.No.1233 of 2002 Dr.J.M.Chandrasekaran ...Petitioner in Cont.P.No.1091/2008 and Appellant in S.A.No.1233/2002/Plaintiff Vs. Krishnamurthy ...Respondent in both Cont.P.No.1091/2008 and S.A.No.1233/2002/Defendant Contempt Petition filed under Section 11 of the Contempt of Courts Act to punish the respondent for committing contempt by disobeying the order dated 12.08.2003 passed in CMP.No.6953 of 2003 in S.A.No.1233/2002. Second Appeal filed under Section 100 of Code of Civil Procedure against the judgment and decree dated 02.04.2002 passed in AS.No.151 of 2001 on the file of the Principal District Judge, Villupuram reversing the judgment and decree dated 11.07.2001 passed in O.S.No.789/1994 on the file of the I Additional Subordinate Judge, Villupuram. For Petitioner : Ms.Hema Sampath,SC for Mr.R.Subramanian For Respondent : Mr.V.Raghavachari - - - - COMMON ORDER This second appeal as well as contempt petition came to be posted before this court on being specially ordered by the Hon'ble Chief Justice vide order dated 21.4.2011. The contempt petition is filed by the petitioner, who is the appellant in the second appeal. The contempt is to punish the respondent for having disobeyed the interim order passed by this court in C.M.P.No.6953 of 2003 in S.A.No.1233 of 2002, dated 12.08.2003. By the impugned order, this court had directed the respondent instead of depositing the rent in the bank, should deposit Rs.300/- towards rent of the property to the credit of O.S.No.789 of 1994 on the file of the I Additional Sub Court, Villupuram and he should continue to deposit the amount https://hcservices.ecourts.gov.in/hcservices/ till the disposal of the second appeal. The court also held that the respondent should not alter the building and there will be an injunction against the respondent from altering the suit property till the disposal of the second appeal. 2.It is the case of the petitioner in the contempt petition that the respondent had started demolishing the property and construction work in the portion leased out to him and that there are building materials gathered inside the premises and debris being removed. The existing front doorways have been removed and narrow doors have been fixed. The respondent also removed the dividing wall between the two portions and had changed the flooring. 3.The respondent on notice in the contempt petition has filed a counter affidavit stating that the suit property known as “Babu Rao Choultry” is under his occupation and that the Choultry is a public religious endowment and did not belong to any individual. He is in enjoyment of the property in the capacity of lessee from the year 1961 and the rent was paid to the management of the Choultry. His position has been recognised by the trust. The appellant claiming right over the suit property had filed a suit in O.S.No.789/94 on the file of the I Additional Subordinate Judge, Villupuram seeking for a declaration of title and for mesne profits. Though he had contested the suit, the suit was decreed against him. He had preferred an appeal in A.S.No.151 of 2001 before the Principal District Judge, Villupuram. The appeal was allowed by dismissing the suit. It is as against the said judgment and decree of the lower appellate court, the second appeal has been preferred. Though the respondent is aware of the order of injunction and complied with the direction of depositing the amount for each month without default, with reference to the alleged demolition and construction, the same was denied. 4.In view of these disputed facts, in the contempt petition both the parties decide that it is in the fitness of things, the main second appeal itself should be disposed of. Hence the second appeal is taken up first. 5.In the main second appeal, the challenge is to the judgment and decree made by the Principal District Judge, Villupuram in A.S.No.151 of 2001, dated 2.4.2002 in having reversed the judgment and decree passed in O.S.No.789 of 1994, dated 11.7.2001 on the file of the I Additional Subordinate Judge, Villupuram. The second appeal was admitted on 5.8.2002 and the following four questions of law were framed as substantial questions of law for consideration in the second appeal as required under Section 100 of CPC: “1.Whether in law the lower appellate court was right in holding that the property was a trust property when there was no endowment or dedication of the property for a public charitable purpose? https://hcservices.ecourts.gov.in/hcservices/ 2.Whether in law the lower appellate court was right in failing to see that the onus was on the party who pleaded dedication to prove that the property had been inalienably dedicated and that the respondent had not discharged his duty? 3.Whether in law the lower appellate court did not err in omitting to see that the important ingredient of the trust was complete cessation of ownership on the party of the founder and the vesting of the property in the object and that in the present case this was not satisfied? 4.Whether in law the lower appellate court was right in omitting to see that the onus never divested themselves of their proprietary interest in the property and that they continued to deal with it till it was sold? 6.Thereafter, the appellant had filed a memo, dated 9.12.2010 seeking for framing of additional substantial question of law. That substantial question of law was also incorporated by an another order dated 14.12.2010 by this court, which reads as follows: “Whether in law, the lower appellate court was right in overlooking that the tenant was estopped under Section 116 of the Indian Evidence Act from denying the landlord's title unless at the very inception of the lease, and without surrendering possession, especially since there was no threat of eviction from the paramount title holder?” 7.The appellant / plaintiff had filed a suit before the trial court in O.S.No.789 of 1994 for declaration of his title tot he suit property, for recovery of possession, for recovery of Rs.10,800/- towards past rent, for mesne profits and for costs. In the plaint, the appellant/plaintiff had asserted that the suit property was situated at Villupuram. It is an old building and in fact, it was more than 100 years old. It was an ancestral property of M/s.Krishnamurthy Rao, Ragupathy Rao, Vijayendra Rao, Gopal Rao and Senthumedhave Rao. The property was under the control of these five persons and some of them were living away from Villupuram. Ragupathy Rao was alone in Villupuram and was in management of the property on behalf of other sharers. After the death of Ragupathy Rao, his son Ramachandra Rao was in management of property. The original owners were leasing out the property to third parties and were realizing the income from the same. The assessment of the property stood in the name of the original owners and they were paying tax properly. After the death of Krishnamurthy Rao, Ragupathy Rao, Vijayendra Rao, Gopal Rao and Sethumadhava Rao, their sons were in possession and enjoyment of the property. The lessees were paying the rental to the rightful owners. https://hcservices.ecourts.gov.in/hcservices/ 8.Since the original owners found it difficult to maintain the property as most of them have become absentee landlords, they had decided to sell the property. The sons of the original owners had jointly sold the property on 28.6.1985 and 25.6.1986 to one K.S.Subramaniam, who became the absolute owner, took control of the property and was in possession of the same. He offered to sell the property to the appellant/plaintiff, who was agreeable to purchase the same. Thus, the said Subramaniam sold the property to the appellant/plaintiff for a valid consideration of Rs.95,000/- on 18.09.1989. After the purchase of the property, the appellant had become the absolute owner. He had also intimated the respondent about the purchase and wanted to aton to the plaintiff. But the respondent was irresponsible. Hence the appellant had caused a notice, dated 28.11.1990 about the willful default in payment of rent and also the requirement of additional accommodation for the appellant to run his clinic. The respondent sent a reply dated 04.12.1990 and contended that the sale was invalid as it is an endowment coming under the HR&CE Department. Therefore, any sale without permission of the department was invalid and hence he had refused to pay the rent. The respondent also stated that he had spent more than Rs.50,000/- in the suit property. The appellant had caused another notice dated 9.2.1994 calling upon him to make payment of rent and also to vacate the premises. 9.However, the respondent had denied all these allegations and had stated that he was in a portion of the property known as Babu Rao Choultry comprising in Natham S.No.363-B/34. The Choultry is abutting both Thiru Vi Ka Road and West Hanumar Koil Street. The whole Choultry measured about 80 feet north south and 165 feet east west. Neither the plaintiff nor his vendors can claim any title over the property in question. It was not an individual property of ancestors and they were only the managing trustee of the Choultry. The property assessment stood in the name of Babu Rao Choultry by its trustees. Hence the two sale deeds referred to by the appellant were questioned as no sanction was obtained from the department for selling the property under Section 34 of the Tamil Nadu Hindu Religious and Charitable Endowment Act and it is void ab initio. There are also other successors in interest having the power of management over the Choultry and the appellant cannot derive any better title than what the vendors had in the property. Therefore any purchase of the endowment property was null and void and unenforceable in law. The suit property was on lease from the year 1961 and the respondent was paying rent to one Saraswathi Bai, who was in management of the Choultry as trustee and hence, he cannot get any title over the suit property. Therefore, the respondent was regularly depositing the rent with the Cooperative Urban Bank, Villupuram right from 1985. By long occupation of the suit property for Flour Mill and Sound Service purposes, the respondent earned good will. As he was permitted to make improvement of the property, he had spent more than Rs.50000/- by installing machineries and had obtained service connections. The question of https://hcservices.ecourts.gov.in/hcservices/ atoning the plaintiff appellant will not arise as there was no landlord-tenant relationship between the appellant and the respondent. The respondent never admitted the ownership of the appellant. Hence the question of any willful default in payment of rent will not arise. 10.As to the origin of the Choultry, it was stated that religious discourses were delivered by many scholars and free food on Madhava Navami days were provided to the poor. The rent free accommodation was also provided for conducting marriage of poor people. Vaishnava conference was conducted and classes for learning Sthothrams was also conducted. The suit property was exempted from the property tax by the municipality prior to 1965. Only when the plaintiff started occupying the premises, the tax assessment commenced and that too in the name of the trustee for Babu Rao Choultry. The respondent has also paid tax to the municipality. The appellant's vendor had purchased the property only in the year 1985. The property tax assessment registers of the municipality were corrected and interpolated by striking out the name of Babu Rao and had inserted the name of K.S.Subramanian from the year 1981-82. 11.Before the trial court, two witnesses were examined on the side of the appellant and the respondent had examined four witnesses. Exs.A.1 to A.52 were marked on the side of the plaintiff and that the respondent/defendant had marked Exs.B.1 to B.48. One document was marked as Ex.X.1 during trial. The trial court had framed 15 issues. It had held that endowment was not for any public and charitable purpose and exclusively meant for sale. The municipality was levying tax even on the purchaser K.S.Subramanian and no tax exemption was made to the society. Merely because it was labelled as Choultry, it does not become a trust property. Further, section 34 of the HR&CE Act will not attract. The property can be sold by vendors. Hence Vengopa Rao and Ramachandra Rao were entitled to sell the property. Insofar as the respondent's contention was concerned, he is bound to pay the rent to the appellant atoning as land owner and his refusal to pay the rent and vacate the property was not justified and not acceptable. The records were not interpolated, but it was corrected due to subsequent purchase of the property. Hence, the respondent cannot continue in the property without permission of the land owner. The appellant is entitled for mesne profits and the respondent is also bound to pay Rs.10800/- towards past rent. 12.Aggrieved by the same, the defendant ha had filed an appeal before the Principal District Judge, Villupuram being A.S.No.151 of 2001. The lower appellate court had framed five issues, which reads as follows: “1.Whether the suit property is a trust property, which is inalienable as claimed by the defendant? https://hcservices.ecourts.gov.in/hcservices/ 2.Whether the suit property is separate property of family members of vendors in Ex.A1 as contended by the plaintiff? 3.Whether the plaintiff has got legal title to the suit property, so as to obtain declaration and recovery of possession as prayed for? 4.Whether any alienation affecting the suit property would attract provisions of Hindu Religious and Charitable Endowment Act? 5.To what relief is the appellant/defendant entitled?” 13.In respect of first three issues, the lower appellate court held that the recital found in Exs.A.45 to A.47 are strong enough to show the character of the property and the purpose for which it was earmarked. There was no room to determine that the property exclusively belonged to the vendors , i.e., appellants. Further the vendors in Ex.A.1 are not lineal descendants to sell the property. Therefore, the lower appellate court held that the suit property was a trust property and an inalienable one. Ultimately the vendors in Ex.A.1 cannot claim it as a separate property and the appellant/plaintiff cannot derive any legal title over the suit property. With reference to the 4th issue, the lower appellate court held that Section 40 of the HR&CE Act will attract and any transaction relating to property has to be done in the light of the HR&CE Act. On the 5th issue regarding the relief claimed by the defendant, it was held that the appellant/plaintiff is not entitled for any relief over the suit property and hence it had dismissed the suit filed by the plaintiff. 14.In the memorandum of grounds of appeal filed in the second appeal, once again it was contended that the suit property was a private property and the respondent is a squatter and has no locus standi. The title was originally passed on to K.S.Subramanian as per Ex.A.1. There is nothing on record to show that it was dedicated to public charitable purpose. Ex.A.33 to Ex.A.36 are ancient documents and cannot be impeached. The mistake in the tax document registers will not falsify the case of the appellant. Exs.B.36 to B.38, the property tax receipts will not make the property as trust property. It is in the light of these allegations, the questions of law have been framed as noted above. 15.Mrs.Hema Sampath, learned Senior Cousnel leading Mr.R.Subramanian, relied on a judgment of the Supreme Court in Kuldip Chand and another Vs. Advocate General to Government of H.P. and others reported in (2003) 5 SCC 46. It is for the purpose of contending that if a Hindu in the event, wishes to establish a charitable institution must express his purpose and endow it. Such purpose must clearly be specified. For the purpose of creating an endowment, what is necessary is a clear and unequivocal manifestation of intention to create a trust. For this purpose, the learned senior counsel placed reliance upon the following passages found in paragraphs 21,22,32,34,42 and 47 of the said judgment https://hcservices.ecourts.gov.in/hcservices/ which reads as follows: “21.It is beyond any dispute that a Hindu is entitled to dedicate his property for religious and charitable purposes wherefor even no instrument in writing is necessary. A Hindu, however, in the event, wishes to establish a charitable institution must express his purpose and endow it. Such purpose must clearly be specified. For the purpose of creating an endowment, what is necessary is a clear and unequivocal manifestation of intention to create a trust and vesting thereof in the donor and another as trustees. Subject of endowment, however, must be certain. Dedication of property either may be complete or partial. When such dedication is complete, a public trust is created in contradistinction to a partial dedication which would only create a charity. Although the dedication to charity need not necessarily be by instrument or grant, there must exist cogent and satisfactory evidence of conduct of the parties and user of the property, which show the extinction of the private secular character of the property and its complete dedication to charity. (See Menakuru Dasaratharami Reddi v. Duddukuru Subba Rao1.) 22.Admittedly, in the instant case, no instrument in writing was created. Establishment of a dharamsala may constitute a charitable trust. It is also not in dispute that Khasra No. 995 is recorded as “parao” (vacant site). Khasra No. 993 makes a reference of demolished site relating to “parao”. In Khasra No. 994, “katcha” latrine is entered whereas in Khasra No. 992 a “residential house” is recorded. 32.If the Dharamsala was constructed for the purpose of sarai within the meaning of the provisions of the Sarais Act, 1867, still it may not amount to creation of a public trust. The Dharamsala was not even registered under the Sarais Act. No evidence had been brought on record to show that the provisions thereof had been complied with either by the ruler of the State or by the chowkidar. 34.Long user of a property as Dharamsala by itself would not lead to an inference that dedication of the property by Kanwar Bir Singh in favour of the public was complete and absolute. Had such dedication been made, the same was expected to be recorded in the revenue records. 42.When a dedication to a charity is sought to be established in absence of an instrument or grant, the law requires that such dedication be established by cogent and satisfactory evidence of conduct of the parties and user of the property which show the extinction of the private secular character of the https://hcservices.ecourts.gov.in/hcservices/ property and its complete dedication to charity. It must be proved that the donor intended to divest himself of his ownership in the dedicated property. The meaning of charitable purpose may depend upon the statute defining the same. 47.This Court laid down the following tests as sufficient guidelines to determine on the facts of each case whether an endowment is of a public or private nature: (1) Where the origin of the endowment cannot be ascertained, the question whether the user of the temple by members of the public is as of right. (2) The fact that the control and management vests either in a large body of persons or in the members of the public and the founder does not retain any control over the management. Allied to this may be a circumstance where the evidence shows that there is provision for a scheme to be framed by associating the members of the public at large. (3) Where, however, a document is available to prove the nature and origin of the endowment and the recitals of the document show that the control and management of the temple is retained with the founder or his descendants, and that extensive properties are dedicated for the purpose of the maintenance of the temple belonging to the founder himself, this will be a conclusive proof to show that the endowment was of a private nature. (4) Where the evidence shows that the founder of the endowment did not make any stipulation for offerings or contributions to be made by members of the public to the temple, this would be an important intrinsic circumstance to indicate the private nature of the endowment.” 16.Therefore, the learned Senior Counsel submitted that in the absence of any document, it cannot be presumed that Babu Rao Choultry was dedicated and endowed to the HR&CE Department. She also referred to a judgment of the Supreme Court in D.Satyanarayana Vs. P.Jagadish reported in AIR 1987 SC 2192 = (1987) 4 SCC 424. This is for the purpose of supporting the fifth question of law, which was framed as an additional issue. It was contended that no tenant of immovable property shall during the continuance of tenancy be permitted to deny the landlord of such title he had, at the beginning of tenancy. The estoppeal contemplated under Section 116 of the Evidence Act is restricted to the denial of title of the landlord at the commencement of the tenancy and by implication it follows that the tenant is not estopped from contending that the title of the lessor had since come to an end. https://hcservices.ecourts.gov.in/hcservices/ 17.The said judgment came to be followed by a learned Judge of this court in K.Bhuvanesh Vs. Rakman Bibi and others reported in 2006 (4) CTC 517. The learned Senior Counsel also referred to an another judgment of this court in A.Koman Vs. T.S.Balasubramaniyan reported in 2004 (3) CTC 489, wherein the same proposition was followed. Subsequently, she referred to an another judgment of the Supreme Court in S.Thangappan Vs. P.Padmavathy reported in AIR 1999 SC 3584 = (1999) 7 SCC 474, wherein it was held that if a tenant is paying rent to the landlord and subsequently came to know that there is paramount title holder, i.e., devasthanam and that the tenant pays the rent to the deavasthanam and not to his own landlord without even being informed by such devasthanam that it was the owner, the default is a willful default. 18.She also referred to the earlier judgment of the Supreme Court in Atyam Veerraju and others Vs. Pechetti Venkanna and others reported in AIR 1966 SC 629(1) for contending that during the continuance of tenancy, the tenant will not be permitted to deny the title of the landlord and that during the continuance of tenancy, no prescribed title can be raised by the tenant. The learned Senior counsel further relied upon a judgment of this court in Seshmal Jain and others Vs. Changamlal Umesh Chandu Bavan and others reported in 1999 III MLJ 614 for contending that in a proceedings of this nature, it is enough if the appellant landlord proves that he has better title over the tenant and it is not necessary to show that the appellant is the absolute owner and they have best of all possible title and that they need to do was to prove that they have superior right or interest vis-a-vis tenant. Reliance was placed upon the following passage found in paragraph 28 of the judgment which reads as follows: “28....As stated in Swadesh Ranjan Sinha's case (1991) 4 SCC 572. Petitioners only need to prove that they have better title than tenants. They need not show that they are absolute owners and they have best of all possible titles. They need only prove that they have superior right or interest vis-a-vis tenants.” Therefore, she contended that both on facts and law, the appellant is bound to succeed. The lower appellate court's order is liable for interference. 19.Per contra, Mr.V.Raghavachari, learned counsel for the respondent contended that there is no substantial question of law involved in this second appeal. The lower appellate court had correctly reversed the findings rendered by the trial court. The lower appellate court examined Exs.B.1 and B.2 which are hand notebooks, evidencing payment of rent by the respondent regularly to one Saraswathi Bai, who was in-charge of the suit property. Under Ex.B.5, it has been clearly stated that the suit property was found to be inalienable and that he had sent money order. The Commissioner