IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 03.03.2011 CORAM THE HON'BLE MRS. JUSTICE R.BANUMATHI and THE HON'BLE MR. JUSTICE M.M.SUNDRESH O.S.A.NOS.302 AND 303 OF 2004 O.S.A.No.302 of 2004: A.N.Kumar .. Appellant/Ist Defendant Vs. 1. Arulmighu Arunachaleswarar Devasthanam Thiruvannamalai, rep.by its Executive Officer, (Asst.Commissioner) Thiruvannamalai 2.P.C.Kumar 3.Dr.J.K.Kumar 4.Ganga Powell 5.M.P.Subbayya 6.V.M.Raghupathy 7.D.Srinivasa Rao ....Respondents/Plaintiff & Defendants 2 to 7 O.S.A.No.303 of 2004: A.N.Kumar ..Appellant/Plaintiff Vs. Arulmighu Arunachaleswarar Devasthanam Thiruvannamalai, rep.by its Executive Officer, (Asst.Commissioner) Thiruvannamalai. .... Respondent/Defendant https://hcservices.ecourts.gov.in/hcservices/ Prayer: Original Side Appeal No.302 of 2004 is filed under Order 36 Rule 1 of Original Side Rules against the Judgment dated 14.2.2001 in C.S.No.1486 of 1988 on the file of this Court. Original Side Appeal No.303 of 2004 is filed under Order 36 Rule 1 of Original Side Rules against the Judgment dated 14.2.2001 in Tr.C.S.No.847 of 1993 on the file of this Court. For appellant : Mr.V.Lakshminarayanan in both Appeals for Mr.V.Raghavachari For respondents : Mrs.Chitra Sampath for R.1. in both appeals COMMON JUDGMENT R.BANUMATHI.,J. These appeals arise out of the common Judgment of the learned single Judge in C.S.No.1486 of 1988 and Tr.C.S.No.847 of 1993 dated 14.2.2001, whereby the learned single Judge decreed the suit filed by the Plaintiff Devasthanam directing the Defendants to quit and deliver the vacant possession and declining to grant the relief specific performance as prayed by the Defendant-A.N.Kumar. Since the points for determination in both the appeals are one and same, both the appeals were taken up together and disposed of by this Common Judgment. For convenience, the parties are referred to as per their array in Civil Suit No.1486 of 1988 filed before this Court. 2. Case of Plaintiff-Devasthanam is that Plaintiff is the owner of the property measuring about 64 grounds in S.No.41, Sri Arunachalampuram in the village of Urur, erstwhile Saidapet Taluk. According to Plaintiff-Devasthanam, the said 64 grounds was leased to one A.Ranaganatha Mudaliar under lease deed dated 24.02.1937 for a period of 50 years on a monthly rent at the rate of Rs.40/-. As per the lease, the lessee was permitted to erect buildings and superstructures over the property. Further case of Plaintiff is that lessee Ranganatha Mudaliar assigned portions of the lease hold property to some third parties in violation of the lease deed, thereby putting an end to the lease in respect of the forfeited portions. Lessee Ranganatha Mudaliar died leaving the Defendants 1 to 3, the grandsons and 4th Defendant, the granddaughter. Case of Plaintiff is that Defendants 1 to 4 as the legal heirs of the original lessee are entitled to the leasehold right in respect of the remaining property described in 'B' schedule. 3. According to Plaintiff, the period of lease fixed under Ex.A1 lease deed expired on 23.2.1987 and on the expiry of lease, https://hcservices.ecourts.gov.in/hcservices/ Defendants 1 to 4 have not surrendered possession of the land or the superstructure and they continued to occupy only as tenants holding over. The Plaintiff-Devasthanam, being the public religious Institution and taking into account the interest of the Institution, the lease was not renewed. Since, Defendants failed to deliver possession of the suit property, Plaintiff issued Ex.A2 legal notice which was replied by the 1st Defendant under Ex.A3. 4. Admitting the ownership of Plaintiff-Devasthanam in the suit property and lease in favour of Ranganatha Mudaliar, 1st Defendant filed written statement stating that Ranganatha Mudaliar executed a settlement deed dated 12.4.1939 in favour of 1st defendant. According to 1st Defendant, he had sent a communication dated 10.02.1986 to the Executive Officer of Plaintiff Devasthanam and thereby he has duly exercised the option to renew the lease for a further period of fifty years and therefore the lease stands renewed upto 24.2.2037. The case of 1st defendant is that on the exercise of option, lease stands automatically extended until 24.2.2037 and that he is also entitled to the protection of City Tenants Protection Act. Since the lease automatically got extended, the 1st defendant cannot be asked to surrender possession. In the written statement, the 1st defendant has further referred to certain instances, whereby Devasthanam is said to have sold tenancies between 1953 and 1967 in Sri Arunachalapuram and absolutely there is no reason why those precedents of sale should not be followed in the case of 1st defendant. 5. The 5th Defendant filed written statement stating he is the tenant under the 1st Defendant for Door No.31, Besant Avenue from 1963 onwards and paying the rent regularly to the 1st Defendant. According to 5th Defendant, as Power Agent of 1st Defendant, 1st Defendant's father executed a sale deed dated 22.11.1971 in respect of Door No.10, Arunachalamapuram with the approval of the Trustees of Plaintiff and subsequently sub-lease deed dated 2.2.1972 was executed assigning the leasehold right to one Jagajothi. Further case of 5th Defendant is that since he is in lawful possession and enjoyment of Door No.31, Besant Avenue ever since December, 1980. 6. Stating that by virtue of the exercise of option to renew the lease, the 1st defendant has filed O.S.No.1969 of 1990 on the file of City Civil Court, Madras for specific performance to direct Devasthanam to specifically perform the renewal clause contained in the registered lease deed dated 24.2.1937 by executing the registered lease deed in respect of the suit property for a period of fifty years from 24.2.1987 to 23.2.2037 on the monthly rent to be fixed by the Court. 7. The plaintiff Devasthanam resisted the said suit contending that the period of lease fixed under the lease deed dated 24.2.1937 expired on 23.2.1987 and that after valid termination of the lease, https://hcservices.ecourts.gov.in/hcservices/ plaintiff Devasthanam filed the suit for recovery of possession. In the written statement, plaintiff Devasthanam has taken a stand that as per Section 34 of Hindu Religious and Charitable Endowments Act, any lease for a term exceeding five years of any immovable property belonging to the religious institution shall be null and void and therefore there is no automatic renewal of the lease on mere exercising of the option by the lessee or his legal heirs. 8. By the order of the Court, the said suit - O.S.No.1969 of 1990 filed by the 1st defendant was transferred to the High Court and re-numbered as Transfer C.S.No.847 of 1993 and taken up for trial along with the suit filed by the plaintiff Devasthanam- C.S.No.1486 of 1988. 9. On the above pleadings in the suits, before the learned single judge following issues were framed: "1. Whether the lease has been extended automatically? 2. Whether the defendant's possession is valid? 3. Whether the defendants are not entitled to any amount as damages? Additional Issue: (1) Whether the defendant is not entitled for specific performance?" 9. In both the suits, common evidence was adduced. Before the learned single Judge, one Dwarakanath - clerk of Plaintiff Devasthanam was examined as P.W.1 and Ex.A.1 – lease deed executed by the trustees in favour of A.Rajagopala Mudaliar, Ex.A.2 – legal notice issued by Plaintiflf Devasthanam to Defendants 1 to 4 for delivery of vacant possession of B Schedule property and Ex.A.3 – reply notice were marked on behalf of the plaintiff. Onbehalf of the defendants, D.Ws.1 and 2, who are the 1st and 5th defendants, were examined and the settlement deed executed by Ranganatha Mudaliar in favour of defendant, letter allegedly written by Manager of plaintiff Devasthanam giving consent to transfer 36 grounds to 1st defendant – A.N.Kumar and the letter of 5th defendant to the wife of 1st defendant were marked as Exs.B.1 to B.3. 10. Upon consideration of oral and documentary evidence, the learned single Judge held that the lessee would be entitled to renewal/fresh lease for a period of fifty years only if during the currency of tenancy, there was no breach or non-observance of any covenants. The learned single Judge further held that contrary to the covenants, lessee had conveyed the properties without getting previous consent of the lessor and in such circumstances, there is no question of further renewal of lease for a period of fifty years. The learned single Judge further held that the defendants are not entitled for automatic renewal of lease for a period of fifty years by merely exercising their option. It was held that since the lessee https://hcservices.ecourts.gov.in/hcservices/ has violated covenants attached to the lease, the defendant is not entitled to the specific performance and the suit C.S.No.1486 of 1988 filed by the temple was decreed. 11. The learned counsel for appellant Mr.V.Lakshminarayanan contended that the lease deed dated 24.2.1937 is a registered document for a period of fifty years with an option of renewal for a further period of fifty years ending on 23.2.2037 and the appellant - 1st defendant exercised the option as stipulated in the agreement on 10.2.1986. The same is binding on plaintiff Devasthanam and the learned judge was not right in saying that the renewal should be by way of registered lease deed. Insofar as the applicability of Section 34 of H.R.& C.E.Act and the restriction as to the period, the learned counsel for the appellant Mr.Lakshminarayanan would contend that the lease entered into with Ranganatha Mudaliar was prior to the enactment of H.R. & C.E. Act and reliance cannot be placed upon its provisions to non-suit the 1st defendant in the suit for specific performance. 12. Drawing our attention to the various alienations, the learned counsel for respondent/plaintiff Devasthanam Ms.Chitra Sampath contended that in breach of the covenants, the lessee had alienated the properties and contrary to the terms of the agreement, Ranganatha Mudaliar sub-leased the portions to some third parties and therefore 1st defendant has forfeited the right to exercise the option for renewal of lease. In any event, the learned counsel would contend that after the enactment of H.R.& C.E.Act, as per Section 34, any lease of any immovable property of religious institution for a term exceeding five years shall be null and void unless it is sanctioned by the Commissioner. It was further contended that there cannot be a decree for specific performance contrary to the mandatory provisions of H.R. & C.E.Act. 13. Upon consideration of the judgment, evidence and materials on record and the above contentions, the following points arise for determination in this appeal: "1. Whether the appellant/defendant is entitled to the specific performance directing the plaintiff Devasthanam to renew the lease? 2. Whether there is automatic renewal of lease for another fifty years as contended by the defendant? 3. Whether the appellant/defendant is right in contending that in view of the remedy available under Section 78 of H.R. & C.E.Act and bar under Section 108 of H.R. & C.E.Act, the suit for possession filed by the plaintiff Devasthanam is not maintainable? 4. To what relief the parties are entitled to?" https://hcservices.ecourts.gov.in/hcservices/ 14. Points No.1 and 2:- The suit A schedule properties to an extent of about 64 grounds was given on lease to 1st defendant's grandfather- Ranganatha Mudaliar for a period of fifty years under Ex.A.1 lease deed (24.2.1937) and only vacant site was leased in favour of Ranganatha Mudaliar for which rent was Rs.40/- per annum. As per the terms of lease, the lessee was permitted to put up superstructures. As per clause (7) of Ex.A.1, the lessee/Ranganatha Mudaliar shall not be entitled to assign, transfer, sell all or any portion of leasehold rights except with the previous consent in writing of the lessors. Clause (7) of Ex.A.1 reads as under: "The Lessee shall notify the Lessors in writing regarding any transfer or disposition of the superstructures or any part thereof, involving a transfer of title, so as to enable the Lessors, to hold the transferees liable for rent, but the Lessee shall not be entitled to assign, transfer, sell, or any portion of the leasehold rights, in the demised premises hereby rented to any person, except with the previous consent in writing of the Lessors." 15. Ranganatha Mudaliar had executed Ex.B.1 settlement deed on 12.4.1939 assigning his leasehold right in favour of 1st defendant. In his evidence, D.W.1 has stated that the plaintiff Devasthanam has consented for the assignment of leasehold rights made by Ranganatha Mudaliar in his favour. According to D.W.1, Ex.B.2 is the consent letter of plaintiff Devasthanam permitting Ranganatha Mudaliar to assign his leasehold right in favour of the 1st defendant. By perusal of Ex.B.2, we find that it is a letter written by S.Narasimha Iyer, Manager to Ranganatha Mudaliar stating that he will obtain the trustees resolution at the next meeting for assigning leasehold right to the 1st defendant. Absolutely, there is no evidence produced by the 1st defendant to show that the plaintiff Devasthanam/trustees permitted Ranganatha Mudaliar to assign his leasehold right in favour of 1st defendant. In the absence of any evidence, the defence plea that plaintiff Devasthanam has consented to the transfer of leasehold right cannot be countenanced. 16. Under Ex.A.1, the property leased was an extent of about 64 grounds. By perusal of the written statement filed by the 5th defendant, it is seen that in 1971, the 1st defendant, through his father and power of attorney sold old Door No.10, Arunachalapuram house under a registered sale deed dated 22.11.1971 to one A.Jagajothi. Subsequently by a registered sub-lease deed dated 2.2.1972, assigned the leasehold right of about 6 ¼ grounds appurtenant to the said old Door No.10, Arunachalapuram in favour of the said A.Jagajothi. Though it is stated that the plaintiff Devasthanam has consented for such alienation, absolutely, no evidence was adduced to substantiate the defence plea that the Devasthanam has consented for such alienations. https://hcservices.ecourts.gov.in/hcservices/ 17. We have pointed out earlier that as per clause (7) of Ex.A.1, the lessee shall not be entitled to assign, transfer, sell, all or any portion of the leasehold rights in the demised premises, except with the previous consent in writing of the lessors. Excepting the interested testimony of 1st defendant, no material was produced to show that the Devasthanam has consented either for the settlement in favour of 1st defendant or the subsequent alienations. The learned single judge rightly held that contrary to the covenants in Ex.A.1, the lessee had conveyed the properties without getting the previous consent of the lessor. Therefore, when there is breach of covenants by the lessee, the lessee forfeited the right to exercise the option for renewal of the lease. 18. Ex.A.1 lease deed dated 24.3.1937 contains a clause authorising renewal of lease for a further period of fifty years, provided that there shall not be at any existing breach or non- observance of any of the covenants mentioned on the part of the lessee. The said clause authorising renewal for further period of fifty years reads as under: "The Lessors shall on the written request of the lessee made at least three calendar months before the expiry of the term hereby demised, provided there shall not be at the time of such request any existing breach or non-observance of any of the covenants herein mentioned on the part of the lessee, grant to the lessee at his expense a fresh lease of the leased plot for a further period of 50 years...." 19. Case of 1st defendant is that by a communication dated 10.2.1986 addressed to the plaintiff Devasthanam, 1st defendant exercised the option to renew the lease for a further period of fifty years and the lease therefore stands automatically renewed upto 24.2.2037 and by virtue of such automatic renewal he is entitled to continue in possession. Even though the 1st defendant in his evidence has stated that on 10.2.1986 he wrote a letter to the Devasthanam asking for renewal of the lease, no such document was produced. That apart, the 1st defendant/lessee has right to exercise the option of renewal only if there was no existing breach or non- observance of any of the covenants mentioned in the lease deed. As elaborated earlier, without the consent of the Devasthanam, the property's leasehold rights were assigned to 3rd parties, which is in clear violation of the covenants of the lease. Under clause (7) of lease deed, lessee is entitled to fresh lease for a period of fifty years only if during the currency of the tenancy there was no breach or non-observance of any covenants mentioned in the lease. But as pointed out earlier, contrary to the covenants, the lessee had conveyed the properties without getting previous consent of the lessor. As rightly held by the learned single Judge, in view of breach of the conditions of lease, the 1st defendant has forfeited his right to exercise the option to ask for renewal. https://hcservices.ecourts.gov.in/hcservices/ 20. That apart, the clause containing option to renewal of lease for fifty years is inconsistent with the provisions of H.R.& C.E.Act, 1959. As per Section 34 of H.R. & C.E.Act, 1959, any exchange, sale or mortgage and any lease for a term exceeding five years of any immovable property, belonging to, or given or endowed for the purposes of, any religious institution shall be null and void unless it is sanctioned by the Commissioner as being necessary or beneficial to the institution. As per repeal clause under Section 118(2)(a), all decisions made, proceedings or action taken under H.R.& C.E.Act be deemed to have been passed or decision made or deemed to have been made under H.R.& C.E.Act, 1959 in so far as they are not inconsistent with 1959 Act deemed to have been made issued, passed, taken, settled or done by the appropriate authority under the provision of H.R. & C.E.Act and shall have effect accordingly. 21. The effect of repeal clause is that all the rules made or orders passed, decisions made shall be deemed to have been made under H.R. & C.E.Act, 1959, so long as they are not inconsistent with the provisions of 1959 Act. Whenever there is a repeal of an enactment, the consequences laid down in Section 6 of the General clauses Act will follow unless, as the section itself says, a different intention appears in the repealing statute. In T.S.BALIAH VS. I.T.O. (AIR 1969 SC 701), the Supreme Court held thus:- "Section 6 of the General clauses Act therefore will be applicable unless the new legislation manifests an intention incompatible with or contrary to the provisions of the section. Such incompatibility would have to be ascertained from a consideration of all the relevant provisions of the new statute and the mere absence of a saving clause is by itself not material. In other words, the provisions of Section 6 of the General clauses Act will apply to a case of repeal even if there is a simultaneous re-enactment unless a contrary intention can be gathered from the new statute." 22. In GAJRAJ SINGH VS. STAT, (1997) 1 SCC 650, the Supreme Court held as under: "24. When there is a repeal and simultaneous re- enactment, Section 6 of the GC Act would apply to such a case unless contrary intention can be gathered from the repealing Act. Section 6 would be applicable in such cases unless the new legislation manifests intention inconsistent with or contrary to the application of the section. Such incompatibility would have to be ascertained from all relevant provisions of the new Act. Therefore, when the repeal is followed by a fresh legislation on the same subject, the Court would undoubtedly have to look to the provisions of the new Act only for the purpose of determining whether the new Act indicates different intention. The object https://hcservices.ecourts.gov.in/hcservices/ of repeal and re-enactment is to obliterate the Repealed Act and to get rid of certain obsolete matters. 23. In the light of above principles, we now proceed to examine the facts of the present case. The question falling for consideration is, in the light of provisions of H.R. & C.E.Act, whether 1st defendant can seek for renewal of lease for a further period of 50 years i.e., till 2037. In view of the expression used in Section 118 (2) of the H.R. & C.E.Act "in so far as they are not inconsistent with 1959 Act", the effect of repealing Act is to abrogate acts or decisions which are inconsistent with the 1959 Act. Clause (7) of Ex.A.1 lease deed containing clause authorising renewal of lease for a further period of fifty years is inconsistent with Section 34 of H.R. & C.E.Act, 1959 and therefore cannot be given effect to. Since clause (7) is inconsistent with the provisions of Section 34 of H.R. & C.E.Act, 1959, the 1st defendant/lessee is not entitled to the decree for specific performance. 24. In any event, granting specific performance is discretionary. Under Section 22 of the Specific Relief Act, one circumstance under which a Court of equity refuses to grant decree for specific performance is on the ground of unfairness. Such unfairness may be either due to the terms of the contract or the conduct of the parties or other existing circumstances. The plaintiff temple has the prerogative right to protect its property for proper administration of the temple and its properties. It is a matter of common knowledge that in the recent past the prices of lands escalated multifold, particularly in urban area. This is all the more so in Besant Avenue, South Madras, where the suit property is situated. In our considered view, passing decree for specific performance directing the temple authorities to renew the lease for a further period of fifty years would injuriously affect the interest of the temple. 25. Point No.3:- The learned counsel for the appellant contended that specific provisions for recovery of possession of the properties belonging to charitable or religious institutions or endowments and the eviction of encroachers have been provided in Tamil Nadu H.R. & C.E.Act, 1959 and hence the suit filed by the plaintiff Devasthanam for recovery of possession of the land and building in the Civil Court is not maintainable and that the same is barred under Section 108 of H.R.& C.E.Act. In support of his contention, the learned counsel placed reliance upon judgement of single Judge in B.SHAJI VS. SREE PRAVARASWAMY DEVASTHANAM, 2010(3) CTC 851, wherein the learned single Judge held that "provisions have been made for the removal of encroachment by the Joint Commissioner under Section 78. The bar provided under Section 108 of the Act will come into play to prevent a suit being filed straight away in a Civil Court for recovery of the https://hcservices.ecourts.gov.in/hcservices/ property. The above contention is liable to be rejected on two simple grounds: Firstly, H.R. & C.E.Act, 1959 came into force on 2.12.1959 and in the case on hand, the lease is of the year 1937 and therefore provisions of H.R. & C.E.Act, 1959 are not applicable. Secondly, Section 78 was inserted by amendment under Tamil Nadu Act 39 of 1996, which came into force on 9.12.1996 and the suit - C.S.No.1486 of 1988 was filed way back in 1988 and Section 78 inserted by Amending Act 39 of 1996 is not applicable. 26. After extracting Sections 78 and 79, in B.Shaji's case (2010 (3) CTC 851), the learned single Judge held that "since a specific provision has been made for the eviction of the encroacher, no suit can be directly instituted in any Court of law except and and in conformity with the provisions of the Act as per Section 108 of Tamil Nadu H.R. & C.E.Act, 1959." In B.Shaji's case (2010(3) CTC 851), the learned single Judge further held that in view of Section 108 of the Act, the Civil Court loses its jurisdiction to entertain the suit for recovery of possession and the learned judge has taken the view that a suit for recovery of possession squarely falls within the ambit of "administration or management of a religious institution or any other matter or disputes determining or deciding for which provision is made in the Act shall be made instituted. 27. Since the above findings of the learned single Judge in B.Shaji's case (2010(3) CTC 851) pertaining to the temple properties would adversely affect the number of suits filed by the Temples, we would like to analyse the said judgment