IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20/12/2011 C O R A M THE HONOURABLE Mr.JUSTICE M.VENUGOPAL Second Appeal No.635 of 1997 1. Sambandam (died) } } 2. Govindarasu }Appellants/Defendants 2, 3 and 5 } 3. Nagammal } 4. Lakshmi } } 5. Paramasivam } Appellants 4 to 8 are } brought on record as 6. Saraswathy } L.Rs of the deceased first } Appellant vide order 7. Poongodi } of Court dated 24/7/2003 } made in C.M.P.Nos.10812 and 8. Paneer Selvam } 10813 of 2002 by PSDJ). Vs 1. Nataraja Chettiar ... First Respondent/Plaintiff 2. Rajammal } W/o. Angappa Chettiar } (All Legal Heirs of decd died) } Rajammal are already on } record either as } Appellants or Respondents } as per Memo dated 4/8/2010 3. Tirupuram } ... Respondents 2 and 3/ Defendants 4 and 6 Second Appeal filed under Section 100 of the Code of Civil Procedure against the Judgment and Decree of the Additional Sub Court, Mayiladuthurai in A.S.No.14 of 1993 dated 14/11/1996 setting https://hcservices.ecourts.gov.in/hcservices/ aside the order of the District Munsif's Court, Sirkali in O.S.No.516 of 1980 dated 30.10.92. For Appellants ... Mr.A.Arumugam For Respondents ... Mr.A.Muthukumar for R.1. R.2 – died R.3 (served) No appearance. J U D G M E N T The Appellants/Defendants 2, 3 and 5 and later, after the death of the First Appellant/Second Defendant 4 to 8 Appellants (who have been brought on record as Legal Representatives of the First Appellant/Second Defendant are the Appellants in S.A.No.635 of 1997, filed against the Judgment and Decree of the First Appellate Court, viz., the Learned Additional Sub-Judge, Mayiladuthurai, in A.S.No.14 of 1993 dated 14/11/1996 in setting aside the Judgment and Decree of the Learned District Munsif, Sirkalai in O.S.No.516 of 1980 dated 30/10/1992. 2. The First Appellate Court, while passing the Judgment in A.S.No.14 of 1993 filed by the First Respondent/Appellant/Plaintiff has inter alia observed that the Defendants are not entitled to claim the benefits of the Madras City Tenants' Protection Act, 1921 (amended by the Act 3 of 1922) and further observed that the First Respondent/Appellant/Plaintiff is entitled to recover possession of the suit property from the Defendants and resultantly, allowed the Appeal with costs, thereby setting aside the Judgment and Decree of the trial Court passed in O.S.No.516 of 1980 dated 30/10/1992. Further, it has also granted two months time to the Defendants to handover possession of the suit property. 3. Earlier, before the trial Court in the main suit in O.S.No.516 of 1980 filed by the First Respondent/Appellant/Plaintiff, 1 to 9 issues have been framed for adjudication. On behalf of the First Respondent/Plaintiff, witnesses P.Ws.1 to 3 have been examined and Exs.A.1 to A.16 have been marked. On the side of the Appellants/Defendants, witnesses D.Ws.1 to 3 have been examined and Exs.B.1 to B.7 have been marked. 4. The trial Court, on an appreciation of oral and documentary evidence available on record, has come to a consequent conclusion that the suit filed by the First Respondent/Plaintiff in his individual capacity is not maintainable and further, the version of the Defendants that he has taken the suit property on https://hcservices.ecourts.gov.in/hcservices/ lease for residence is a correct one. That apart, the trial Court has also observed that the notice issued by the First Respondent/Plaintiff to the deceased First Defendant is not proper and valid and has also further held that the Defendant is entitled to get the benefits under the Tamil Nadu City Tenants' Protection Act, 1921. Moreover, the trial Court has also held that the First Respondent/Plaintiff is entitled to get part compensation amount from the Appellants/Defendants and also held that the First Respondent/Plaintiff has not issued notice to the Defendants as per Section 11 of the Tamil Nadu City Tenants' Protection Act and also as per Section 106 of the Transfer of Property Act. Also, since the First Respondent/Plaintiff has filed the suit in his individual capacity, the suit filed by him is bad and accordingly, passed a decree only to the effect that the First Respondent/Plaintiff is entitled to recover a suit part sum of Rs.420/- from the Defendants and further, directed the mesne profits to be decided as per Order 20 Rule 12 of the Code of Civil Procedure by means of a separate proceedings. In respect of other reliefs, it dismissed the suit without costs. 5. At the time of admission of the Second Appeal, this Court has formulated the following substantial questions of law for consideration:- “1. Whether the suit for Recovery of possession filed by the alleged Trustee in his individual name and not in the name of trust is maintainable in law? 2. Whether the appellants having been found to have taken lease and having been found to have put up constructions thereon by both the Courts below can be said not to be entitled to protection under the City Tenants' Protection Act? 3. Whether the suit for recovery of possession without a valid notice prior to the filing of the suit as contemplated in the City Tenants Protection Act is maintainable?” 6. THE CONTENTIONS, DISCUSSIONS AND FINDING ON SUBSTANTIAL QUESTION OF LAW No. (1):- It is the contention of the Learned counsel for the Appellants that the First Appellate Court failed to see that the suit for recovery of possession filed by the alleged trustee is in his individual name and not in the name of the Trust. 7. Further, the Learned counsel for the Appellants submits https://hcservices.ecourts.gov.in/hcservices/ that the First Appellate Court committed an error in deciding the matter that the suit is band without impleading the real owner of the property viz., the Trust. 8. The Learned counsel for the Appellants submits that Section 92 of the Code of Civil Procedure meant to obtain directions of the Court in connection with the matters relating to the administration of the Trust etc., and the suit in respect of vesting the properties in a trustee will come within the purview of Section 92 (c) of the Civil Procedure Code and further Clause (c) of the Civil Procedure Code and further Clause (c) of Section 91 (1) of the Code of Civil Procedure enjoins the vesting of Management of property with the trustee and to lend support to his contention, relied on the decision MUSALIYARAKATH ABDUL AZEEZ & ANOTHER Vs. LIWA EDUCATIONAL AND CHARITABLE SOCIETY & OTHERS reported in CDJ LAW JOURNAL 2010 KERALA at page 471. 9. Per contra, it is the contention of the Learned counsel for the First Respondent/Plaintiff that the First Respondent/Plaintiff is a grandson of Thiruvengada Chettiar and after the death of Thiruvengadam's wife, Bavaniathal in the year 1966, the First Respondent/Plaintiff is the son of Rajammal, the pre-deceased daughter of Bavaniathal and therefore, he is entitled to be the trustee as per the terms and conditions of the Settlement Deed dated 8/4/1935 and consequently, he is entitled to be in possession of the suit property. 10. According to the Learned counsel for the First Respondent/Plaintiff, the suit filed by the First Respondent/Plaintiff is in his capacity as trustee duly constituted as per the provisions of the Settlement Deed dated 8/4/1935 and in fact, the First Respondent/Plaintiff concedes that the suit property belongs to the Trust. 11. As a matter of fact, the First Respondent/Plaintiff before the trial Court has filed the suit for recovery of possession of the suit property after removal of superstructures put up by the First Defendant (deceased) i.e., the father of the First Appellant/Deceased and for the recovery of amount by means of rent or by way of damages for use and occupation at the rate of Rs.12/- p.m., from 1/9/1977 amounting to Rs.420/- and for future mesne profits from the date of suit till the date of delivery. 12. It is to be noted that it is the case of the First Respondent/Plaintiff that the suit property has been taken on lease by the First defendant Angappa Chettiar (later Deceased) for the purpose of putting up a Country Oil Press and he agreed to pay a https://hcservices.ecourts.gov.in/hcservices/ monthly rental of Rs.6/- and the lease arrangement has been entered into by the First Defendant (since Deceased) with Bavaniathal (wife of Thiruvengada Chettiar) for a period of one year beginning from 19/8/1956 and the First Defendant (later Deceased) has been put in possession of the suit property in pursuance of the said lease arrangement. The First Defendant (later Deceased) executed a lease Deed in favour of Bavaniathal on 19/8/1956 affirming the lease and the terms of the lease arrangement. It has been expressly arranged between the First Defendant and Bavaniathal that the First Defendant should not put up any structure or building in the suit property and also the First Defendant agreed that he will use the suit property solely for the purpose of putting up Country Oil Press. 13. In the plaint, the First Respondent/Plaintiff has averred that the suit property belong to Thiruvengada Chettiar, S/o. Muthusamy Chettiar of Sirkali. By means of a Settlement Deed dated 8/4/1935, he endowed the property for the purpose of performance of certain Trust mentioned in the said Deed and also provided that he will be the first trustee for the performance of the Trust and thereafter, his heirs shall be entitled to the hereditary trustees for the Management of the Trust properties and for the performance of the Trust. As per the Clauses mentioned in the Settlement Deed dated 8/4/1935, Thiruvengada Chettiar has been the first Trustee and functioned as such till his demise and thereafter, his wife Bavaniathal has become the Trustee as per the provisions mentioned in the Settlement Deed. 14. The Learned counsel for the First Respondent/Plaintiff submits that the First Respondent/Plaintiff in the plaint itself in para 7 has categorically stated that he has filed the suit in his capacity as a Trustee as per the Settlement Deed dated 8/4/1935 and further, the Plaintiff concedes that the suit property belongs to the Trust and as such merely mentioning the name of the First Respondent/Plaintiff without describing himself as trustee of the Trust in the cause title of the suit is not fatal. 15. In the written statement filed by the Defendant (Deceased) before the trial Court in paragraph 3, it is averred that he has taken on lease in his favour the suit schedule property as a private property of Bavaniathal and further, the Trust mentioned in the plaint is false and no such Trust exists. Also, even if the Trust Deed, is held to be true, the said Trust is not in existence for the past several years and the same has not been acted upon. Moreover, the property has been treated only as a private property. Bavani Athal has treated the suit property as her own and individual performed the deeds mentioned in the Trust Deed. https://hcservices.ecourts.gov.in/hcservices/ 16. That apart, the deceased Defendant in the written statement has also pleaded that the Trust Deed mentions that the suit property will have to be maintained as 'Flower Garden' and it should not be converted for any other use. The fact remains that there has been no flower garden at all in the suit property for the past several decades and so called trustees have not performed the Kainkariams mentioned in the Trust Deed. The suit property is a private property and to lend colour to the suit, it is mentioned as a Trust property. 17. The Learned counsel for the First Respondent/Plaintiff cites a decision in N.D.AMULRAJ Vs. S.RAMASWAMY PILLI AND ANOTHER reported in 1979 TNLJ at page 328, wherein at page Nos.329 and 330, it is observed as follows:- “Apart from the question of the commencement of the tenancy, there is yet another objection raised by the learned counsel for the appellants. There is no material placed before the Courts below to show that the superstructures were put up by the first respondent prior to 19/2/1958. In order to claim the benefits of Section 9 of the City Tenants Protection Act in the instant case, the respondents must establish that they become tenants prior to 19/2/1958 when the provisions of the Act were extended to Coimbatore and also that the superstructures were put up by them before the date of the extension. It is in this connection, the learned counsel for the appellants has relied on the decision reported in Sundareswarar Devasthanam V. Marimuthu (A.I.R.1963, Madras 369). At page 375, the Bench stated thus:- “In our opinion none of those circumstances need exist; it would be enough if the tenant of the land had put up a superstructure prior to the date of the Act in the cases where the land is not part of the temple or mosque etc.” In S.A.No.901 of 1968 and C.R.P.No.1338 of 1968, Ismail, J had occasion to consider this aspect of the matter and the learned Judge observed thus:- “However, a Bench of this Court in Sree https://hcservices.ecourts.gov.in/hcservices/ Sundareswarar Devasthanam V. Marimuthu (AIR 1963 Madras 369), has proceeded on the basis that the protection will be available to a tenant only if he had put up the superstructure prior to the coming into force of the Act or the extension of the Act as the case may be. That being a decision of a Bench, it is binding on me even though the point did not directly arise in that judgment. Following that judgment, it must be held that the appellant-petitioner is not entitled to the protection of the Act because the superstructure was put by him subsequent to the extension of the Act to the city in question.” In Balakrishna Mehta V. Messrs. Burmah Shell (1974 I MLJ 380) Natarajan, J had occasion to consider this and the learned Judge had applied the principles in AIR 1963, Madras 369 and the judgment of Ismail, J., to the case before him with reference to the claim or benefits of Section 9 of the City Tenants' Protection Act. In the instant case, no materials have been placed before the Courts below to establish that the respondents have put up the superstructures in question before 19/2/1958 when the provisions of the City Tenants Protection Act were extended to the city of Coimbatore. In this view also, the benefit of Section 9 of the City Tenants Protection Act claimed by the respondents has to be negatived.” 18. He also cites the decision in V.RAJU Vs. ANGAMMAL reported in 1994 (1) MLJ at page 26, wherein it is held hereunder:- “When there is a denial of title the person who has denied the title of the landlord cannot claim the benefits of the enactment. Once it is found by the Court that the defendant is not a person who can claim the benefits of the Madras City Tenants' Protection Act as a 'Tenant' defined by the Act on the ground that he has denied the title of the landlord, the relationship of the landlord and the tenant having been surrendered by the https://hcservices.ecourts.gov.in/hcservices/ conduct of the defendant even prior to the filing of the suit, the contention that notice should have been issued under Sec.11 of the Act is wholly unsustainable.” 19. He invites the attention of this Court to the decision in RAJAMMAL (DIED) AND OTHERS Vs. THE IDOL OF SRI THANTHONNEESWARASWAMI By ITS HEREDITARY TRUSTEE K.APPATHURAI reported in 1993 1 MLJ at page 387, wherein it is held as follows:- “The principle on which Bhargavakula Nainargal Sangan V. Arunachala Udayar (1990) 1 L.W – 46, held that the denial of title would disentitle the defendant to get the benefits of the Act would equally apply to a case where denial of title is subsequent to the commencement of the suit.” 20. A perusal of Ex.A.1 Settlement Deed dated 8/4/1935 executed by Tiruvengada Chettiar shows that the property mentioned in the document has come into his independent enjoyment hands as per Sirkali District Munsif Court Decree in O.S.No.59 of 1933. The recitals in Ex.A.1 Settlement Deed shows that for the performance of Kainkariams to God and Goddess viz., Sri Parvathi Parameshwaran, Tirupathi Srinivasa Perumal, Alamelumangai, Palani Sri Kuzhandhaivel Perumal, Sankaranarayanaswamy at Sankaranar Temple, Gomathiamman, Udayarpalayam Sri Periyanayagiamman and to raise a flower garden (Nandavanam). The suit property has been dedicated and the flowers will have to be planted and raised in the property and after himself, his heirs will be act as Hereditary Trustees and to enjoy the flowers raised and those flowers will have to be given to the Gods daily and garland has to be prepared and to adore it on the said Goddess/Gods. This property will have to be used for Nandavanam and it cannot be used for other purpose. Further, himself and his heirs have no right to encumber the property or sell the property and if they do so, it is not valid. In the schedule of property in Ex.A.1 Settlement Deed, the total extent is mentioned as 12,884 Sq.feet of land inclusive of coconut and other trees. 21. In the instant case, the First Respondent/Plaintiff has filed the suit though stated to be in his capacity as a trustee and further, he has conceded that the suit property belongs to the Trust. Yet in the cause title of the plaint, the First Respondent/Plaintiff is shown simplicitor by name and not shown as 'Trustee' of the Trust' filing the suit for and on behalf of the Trust. At this stage, it is not out of place for this Court to make a significant mention that Order XXXI Rule 1 of the Code of https://hcservices.ecourts.gov.in/hcservices/ Civil Procedure speaks of “Representation of beneficiaries in suits concerning property vested in trustees”. A trustee admittedly represents the individuals beneficially interested and a third party, as opined by this Court. Where the contest in the suit is between the persons beneficially interested in such property under third person, it is not necessary to make all the trustees party in the suit, as per decision SAINATH MANDIR TRUST Vs. VIJAYA V. MANDALE reported in (2004) Vol. 106 (1) Bom LR 259 (267) (Bom). In a suit against a temple, all the trustees are necessary parties although, there may be an agreement between them and authorising one of them to represent the temple, as per decision ADIRAJU Vs. PATTU reported in AIR 1922 M at age 405. 22. This Court aptly points out the decision KISHORELAL ASERA LAL ASIRA Vs. HAJI ESSA ABBA SAIT ENDOWMENTS, rep. BY ITS TRUSTEES 1. IBRAHIM SAIT AND 4 OTHERS reported in 2003 3 Law Weekly at page 372, at page 373, wherein it is held as follows:- “Order XXXI, Rule 1 C.P.C dealing with the representation of beneficiaries in suits concerning property vested in Trustees says that the Trustee shall represent the persons so interested. This provision does not disentitle a person who happens to be a Trustee from suing for and on behalf of the Trust. A Trust not being a legal person is not entitled to sue in its own name. Therefore, in a suit for evicting the tenant from the Trust premises, the Trustees jointly or any one of them, when authorized in that behalf by the rest of them, can maintain the suit. Rule 2 of Order XXXI C.P.C says that where there are several Trustees, they shall all be made parties to a suit against one or more of them. There is a distinction drawn between a suit filed by the Trust and the suit against the Trustees ... The Trust Deed, Ex.a.1 recognizes five Trustees. The Memorandum of Association also consists of a Governing Body consisting of five members. There is no dispute as to the fact that at the time when the suit was instituted then, all the existing five Trustees were representing the Trust. However, any change of the Trustee when the office falls vacant would not mean that the Trust is not represented properly for want of correct cause title. The Court has the power https://hcservices.ecourts.gov.in/hcservices/ to accept any of the Trustees to represent the Trust in a suit concerning the property vested with the Trust.” 23. Added further, a suit for evicting a tenant from the Trust premises can be maintained on behalf of the Trust by all the Trustees jointly or by any one of them when authorised in that behalf by the rest of them. 24. It is to be noted that a suit under Section 92 of the Code of Civil Procedure being representative in character binds all those interested in the Trust, in the considered opinion of this Court. In case of administration, where objects are not carried out for the benefit of public, remedy to the concerned/affected lies as per Section 92 of the Code of Civil Procedure. 25. A beneficiary ought to be always be made as a party when the executor is wholly uninterested in the case as he has fully administered an Estate in suits between the beneficiaries and the third person the trustees sufficiently represent the beneficiaries, though the beneficiaries are an un-ascertained and an unascertainable clause or persons. In the case before hand, though the First Respondent/Plaintiff in the plaint in O.S.No.516 of 1980 has stated that he is the son of Rajammal, predeceased daughter of Bavaniathal and that he is the grand son of Tiruvengada Chettiar, whose wife is Bavaniathal, who expired in 1966 and since he is the surviving person, he is entitled to be the trustee as per the terms of the agreement Ex.A.1 Settlement Deed dated 8/4/1935. Even though in the long cause title of the plaint, he has not shown himself as a trustee in respect of the suit property, but shown himself in his individual capacity. Since he has conceded that the suit property belongs to the Trust, the said omission is not fatal to the case and in as much as the First Respondent/Plaintiff, in paragraph 7 of the plaint, has averred that he has instituted the suit in his capacity as Trustee as per the Clauses of the Settlement Deed dated 8/4/1935 and further he has admitted that the suit property is a Trust property, this Court opines that Order XXXI Rule 1 of the Code of Civil Procedure is only an enabling provision and it does not disentitle a person who happens to be a trustee from suing in his individual capacity at his option. Although, he has not described himself as a trustee of the Trust in the long cause title of the plaint, yet, since he has instituted a suit in his capacity as a trustee and further conceded that the suit property is a Trust is non-filing of the suit in the name of Trust is not a material defect (since the said omission is only a matter of form and not of substance and the suit filed by him for recovery of possession in the long cause title of the plaint describing himself as an individual is maintainable in law and the https://hcservices.ecourts.gov.in/hcservices/ substantial question of law No.1 is so answered in favour of the First Respondent/Plaintiff. 26. THE CONTENTIONS, DISCUSSIONS AND FINDING ON SUBSTANTIAL QUESTION OF LAW Nos.2 AND 3:- It is the case of the First Respondent/Plaintiff that the First Defendant (Angappa Chettiar/Deceased) who has been let into possession as per Lease Deed dated 19/8/1956 and he held over and continued in possession of the suit property even after the expiry of the lease period and has been paying the rent till the death of Bavaniathal. Consequent to the death of Bavaniathal, the rent has been enhanced to Rs.12/- p.m., and an arrangement has been entered into between the First Respondent/Plaintiff and the First Defendant. Except the variation in rent, the other terms and conditions as found in the lease deed have continued to be in force. According to the First Respondent/Plaintiff, the First Defendant paid a rent till 19/8/1974 and thereafter, he committed default. Since the suit property has been required for the use of the Trust and in view of the fact that the First Defendant has committed default in payment of