[2007 (2) TNCJ 1 (Mad)]

MADRAS HIGH COURT

BEFORE:
S. RAJESWARAN, J.
M/S. C.B. MULTHUSAMY CHETTIAR COMPANY
REP BY PROPRIETOR ...Petitioner
Versus
A. SUNDAR RAJ …Respondent
[C.R.P. (NPD) Nos. 885, 974 and 975 of 2003, decided on 7 June, 2007]
th

(A) Tamil Nadu Buildings (Lease and Rent Control) Act, 1960—Section 4—Fair
rent—Fixation of—Claim made at Rs. 42162/- p.m.—Tenant alleged fair rent could not
be more than Rs. 7,500/- p.m—Rent Controller fixed the fair rent Rs. 35,065/- p.m.—
Both parties filed appeals—Appellate Court fixed fair rent at Rs. 33, 859 instead of Rs.
35, 065/-—Both parties filed revisions—Legality of— Appreciation of evidence—
Reliance placed on sale deed Ex.A-9 in computing the market value of the property—
None of the parties to the sale deed was examined to prove the content—Appellate
authority ought not to have relied upon to arrive at the cost of the land as Rs.
22,00,000/-—Rent Controller relied on the Government Guideline Value for arriving at
the cost of the land at Rs. 22,89,600/-—Rent Controller also committed error in relying
upon Guideline Value which cannot form basis for determination of market value—
Orders passed by two authorities below are unsustainable—Set aside—Matter
remanded for fixing fair rent of the property during relevant point of time after
allowing the parties to adduce evidence.
(Paras 18 to 20, 22 and 23)
 (B) Practice and procedure—Subsequent events—Court can always take note.
(Para 21)
Case law.—1996 (2) L.W 637; 1996. (2) L.W 658; 2001 (3) M.L.J. 396; 2001 (2)
C.T.C 424; 2006 (2) C.T.C. 433;
Counsel.—Mr. S. Parthasarathi, Senior Counsel, for M/s. A. Ramesh Kumar, for the
petitioner; Mr. A. Thyagarajan, for the respondent.
JUDGMENT
S. RAJESWARAN, J.—Civil Revision Petition No.885/2003 has been filed against the
order dated 25.11.2002, passed in R.C.A.No.374/1997, on the file of VII Small Causes Court,
Chennai in modifying the order dated 31.1.1997 passed in R.C.O.P. No.1566/1994, on the
file of the XVI Small Causes Court, Chennai,
2. Civil Revision Petition No.974/2003 has been filed against the order dated
25.11.2002, passed in R.C.A.No.270/1997, on the file of VII Small Causes Court, Chennai
against the order dated 31.1.1997 passed in R.C.O.P. No.1566/1994, on the file of the XVI
Small Causes Court, Chennai.
3. Civil Revision Petition No.975/2003 has been filed against the order dated
25.11.2002, passed in R.C.A.No.374/1997, on the file of VII Small Causes Court, Chennai
against the order dated 31.1.1997, passed in RCOP No.1566/1994, on the file of the XVI
Small Causes Court, Chennai.
 4. R.C.O.P. No.1566/1994 was filed by the landlord under Section 4 of the Tamil
Nadu Buildings (Lease and Rent Control) Act, 1960, hereinafter called ‘the Act’, for fixing
the fair rent for the tenanted premises at Rs.49,162/- per ;month. The premises let out is
the entire ground floor except one shop abutting the street and entire first floor except one
room in premises No.89, Govindappa Naicken Street, Chennai.1. This R.C.O.P. was resisted
by the tenant by stating that at the most the fair rent could not be more than Rs.7,500/- per
month. The Rent Controller by order dated 31.1.1997 fixed the fair rent Rs.35,065/- per
month and aggrieved by the same the tenant filed R.C.A. No.374/1997. The landlord was
also aggrieved by the order of the Rent Controller and therefore he also filed R.C.A.
No.270/1997. The Rent Control Appellate Authority by a common order dated 25.11.2002
disposed of both the appeals by fixing the fair rent at Rs.33,859/- instead of Rs.35,065/- as
fixed by the Rent Controller. Aggrieved by the order made in R.C.A. No.374/1997
fixing the fair rent at Rs.33,859/- instead of Rs.7,500/- per month, the tenant has filed CRP.
(NPD)No.885/2003. Similarly the landlord aggrieved by the order of the appellate authority
in reducing the fair rent to Rs.33,859/-, filed CRP (NPD) No.974/2003. The landlord has
also filed another CRP (NPD)No.975/2003 as the fair rent was not fixed at Rs.49,162/- per
month as demanded by him.
5. The case of the landlord in RCOP No.1566/1994 is that the rent paid by the tenant at
Rs.4,750/- per month is very low and as the property is situated in a highly commercial area,
the fair rent is to be fixed at Rs.49,162/- per month. This was resisted by the tenant by
contending that the property is 45 to 50 years old and the fair rent could not be fixed at more
than Rs.7,500/- per month.
6. The Rent Controller after going through the evidence let in by the parties found that
the building is a class I category and it is 80 years old. The Rent Controller has also accepted
that the construction area in the ground floor is 3460 sq.ft., and 1,580 sq.ft., in the first floor
with Madras flooring and 216 sq.ft., in the 1st floor with Mangalore tiles. The Rent
Controller fixed the construction cost by taking note of the rates fixed by PWD for the year
1994-1995. The rent Controller fixed the value of the land at Rs.22,89,600/- per ground on
the basis of Ex.C-1 which is the copy of the guidelines value. On that basis, the Rent
Controller fixed the fair rent at Rs.35,065/- per month.
7. The appellate authority after re-appreciating the evidence concurred with the
findings of the Rent Controller except with regard to the value of the land at
Rs.22,00,000/- based on Ex.A9 which is a sale deed executed in the year 1997 in respect of a
property situated within = km from the tenanted premises. Only on that basis the
appellate authority reduced the fair rent fixed by the Rent Controller from Rs.35,065/- to
Rs.33,859/- per month. Thus both the authorities have concurrently found that the fair rent
would exceed more than Rs.30,000/- per month and the only contention is the value fixed by
the Rent Controller was the cost of the land. The Rent Controller fixed the value of the
land at Rs.22,89,600/- per ground on the basis of the guideline value, whereas the appellate
authority fixed the value of the land at Rs.22,00,000/- per ground on the basis of Ex.A9. In
all other aspects, the findings by both the authorities below are concurrent and the same.
8. Heard Mr. Parthasarathy, the learned senior counsel for the tenant and the learned
counsel for the landlord. I have also gone through the documents filed and the judgments
referred to by them in support of their submissions.
9. The learned senior counsel for the tenant submitted that the appellate authority
committed an illegality in relying on Ex.A9 for arriving at the cost of the land at
Rs.22,00,000/- as the parties to Ex.A9 were not examined before the Court below. Therefore
the learned senior counsel submitted that the value of the land should be calculated at Rs.10
lakhs only as submitted by the tenant. The learned senior counsel relied on the following
decisions in support of his contentions:
(1) 1996 (2) L.W.637 (Rahmath Fathima, T.H.S. v. T.K.Kader Mohideen)
(2) 1996 (2) L.W. 658(K.Ramanathan (died) and others v. B.K.Nalini
Jayanthi)
10. Per contra, the learned counsel for the landlord submitted that the parties need not
be examined to prove the transaction and a certified copy of the sale deed could not accepted
by computing the market value and he relied on the decision of this Court reported in
2001(3)M.L.J. 396 (Susainathan v. Vijayan) and the decision of the Supreme Court in
2001(2) CTC 424 (Land Acquisition Officer and Mandal Revenue Officer v. V.Narasaiah).
11. I have considered the rival submissions carefully with regard to facts and
citations.
12. Insofar as the contention of the learned senior counsel for the tenant that the
reliance placed by the appellate authority on Ex.A9 is wrong is concerned, I find force in his
submissions.
13. In 1996 (2) L.W.637 (cited supra), a learned Single Judge of this Court held that a
mere marking of a document with consent will not amount to proof of its contents and the
sale deed executed between private parties will not be a public document under Section 74
of the Indian Evidence Act. Unless the parties to the documents appear before the Court and
prove the contents of the documents, namely sale deed, the same will not amount to proof of
its contents.
14. This decision was approved by a Division Bench of this Court reported in 1996 (2)
L.W.658 (cited supra). The Division Bench in the above decision held that persons
connected with the sale transactions or attesting witnesses should be examined in order
to prove the transactions as well as the factors referred to therein. The relevant portion reads
as under:
“30. To determine the fair rent under Section 4 of the Tamil Nadu Buildings (Lease
and Rent Control) Act, 1960 evidence in each case is absolutely necessary. It will
not be possible for any Court to have an idea about the relevant factors, viz.,
location of the site, proximity, nearness to the developed areas, frontage, situation,
etc., etc., in any case, merely on the basis of sale deeds pertaining to some lands in
the locality. Even the particulars contained in a given case are sufficient to prove
the nature and character of the lands, dealt with therein, there must be evidence
before the Court to the effect that the lands are similar in nature and the character
of the lands dealt with in such sale deeds, and those documents could be taken into
consideration for fixing the fair rent for any residential or non-residential
building. If a party rests content with producing some sale deeds and if there is no
material before Court, the sale deeds cannot be taken into account by the Court for
determining the market value. Therefore, as held by the Supreme Court in 1993
(3) S.C.C. 240 and 1991(4) S.C.C. 195 referred to supra, persons connected with
the sale transactions or the attesting witnesses should be examined in order to
prove the transactions as well as the factors referred to therein. The burden of
proof is always on the landlord to prove in each case the market value or the site in
which the building is constructed, the cost of construction of the building and the
 cost of provision of any one or more of the amenities specified in Schedule I as on
the date of application for fixation of fair rent. Under Section 64 of the
Evidence Act, documents must be proved by primary evidence except in cases
mentioned in Section 65 of the Evidence Act, 1872.”
“31.Section 51-A of the Land Acquisition Act has been introduced in the Land
Acquisition Act. By virtue of the said section, the provisions of Section 65 (f) of
the Evidence Act become operative and registration copies of sale deeds or other
documents may be accepted as evidence of the transaction recorded in the
document in the proceedings under the Land Acquisition Act. Section 51-A of the
Land Acquisition Act does not dispense with proof of the relevant factors which
are absolutely necessary to enable the Court to determine the market value of the
land. Therefore, oral evidence is necessary to speak about the transactions proved
by the sale deeds. We have already extracted the observations made by the
Supreme Court in 1993 (3) S.C.C. 240, wherein the Supreme Court has expressly
referred to the provisions of Section 51-A of the Land Acquisition Act. Our above
view is also fortified by many rulings referred to in the earlier part of this
judgment.”
“32.For the foregoing discussions, we hold that the view expressed by S.S.
Subramani, J., in C.R.P.Nos.4673 and 4674 of 1987 dated 7.10.1994 since reported
in 1996 (2) L.W.631 is correct. We are of the view that the learned Judge has
rightly set aside the orders of the authorities below in that case and remitted the
matter to Rent Controller to decide the case afresh since the finding was not based
on legal evidence.”
15. In 2001(2)CTC 424 (cited supra), the Supreme Court held that certified copy of the
sale deed could be considered without examining persons connected with the transactions
mentioned in the sale deed in view of Section 51-A of the Land Acquisition Act.
16. Following the above said Supreme Court judgment, a learned Single Judge of this
Court in the decision reported in 2001(3) M.L.J.396 (cited supra) held that while fixing the
fair rent under Section 4 of the Act, certified copies of sale deed could be considered for
computing market value of the property without examining anybody concerned with the
transactions for proving the market value.
17. As rightly pointed out by the learned senior counsel for the tenant the decision of
the Hon’ble Supreme Court reported in 2001(2) CTC 424 (cited supra) was delivered by
taking into consideration Section 51-A of Land Acquisition Act and there is no such
provision in the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. Therefore, I am
inclined to prefer the decision of the Division Bench of this Court reported in 1996 (2)
L.W.658 (cited supra) to the decision of the learned Single Judge reported in 2001(3)
M.L.J.396 (cited supra) which was passed without considering the decision rendered by the
Division Bench of this Court. Therefore, I am of the opinion that unless the parties to the
sale deed are examined before the Court the sale deed will not prove its contents even though
it is marked by consent of both the parties.
18. Admittedly in the present case, Ex.A9 sale deed was marked through P.W.3, who
is the son of the landlord. None of the parties to the sale deed, i.e., Ex.A9, was examined to
prove its content. In such circumstances, the appellate authority ought not to have relied on
Ex.A9 to arrive at the cost of the land at R.22,00,000/-.
19. The Rent Controller on the other hand relied on Ex.C-1, the Government Guideline
value for arriving at the cost of the land at Rs.22,89,600/- per ground. The Government
Guideline value cannot form basis for determination of market value as the guideline value is
fixed for determination of amounts payable by way of stamp duty. Therefore, the Rent
Controller has also erred in relying on Ex.C-I for arriving at the cost of the land at
Rs.22,89,600/- per ground. A Full Bench of this Court in the decision reported in
2006(2)CTC 433 (Sakthi & Co. v. Shree Desigachary) narrated the methods of valuation of
ascertaining the market value and the relevant portion reads as under:
“14.The methods of valuation for ascertaining the market value, as suggested in the
above decisions, are as follows:
(1) Opinion of experts.
(2) The price paid within a reasonable time in bona fide transactions of
purchase of the lands acquired or the lands adjacent to the lands acquired
and possessing similar advantages. Evidence of bona fide sales between
willing prudent vendor and prudent vendee of the lands acquired or situated
near about that land possessing same or similar advantageous features
would furnish basis to determine market value.
(3) A number of years purchase of the actual or immediately prospective
profits of the lands acquired.
15. It is a settled law, as laid down in the judgments referred to above, that in
determining the market value, the Court has to take into account either one or the
other three methods to determine market value of the lands appropriate on the
facts of a given case. According to the Supreme Court, generally, the second
method of valuation is accepted, as the best. This method would furnish the
evidence of bona fide sales between willing prudent vendor and prudent vendee
of the lands acquired or situated near about that land possessing same or similar
advantageous features, which would enable the Court to determine the market
value correctly.
16. In view of the above ratio decidendi fixed by the Supreme Court, the
fixation of market value on the basis of guideline value or valuation register,
summoned from Sub-Registrar’s Office and the Engineer, is illegal and
unsustainable.
17. The view expressed by Justice S.S. Subramani, in our view, is correct, as it is in
consonance with the principles laid down by the Supreme Court. The other view
expressed by Justice Srinivasan is not correct, as the methods suggested by the
Supreme Court for fixing the market value would not include the consideration of
guideline value and valuation register. So, in our opinion, the said view is wrong.
18. Therefore, our conclusions are as follows:
(1) The guideline value, contained in the Basic Valuation Register, maintained
by the Revenue Department or the Municipality for the purpose of
collecting stamp duty, has no statutory base or force. It cannot form a
foundation to determine the market value mentioned thereunder in
instrument brought for registration.
(2) Evidence of bona fide sales between willing prudent vendor and prudent
vendee of the lands acquired or situated near about that land possessing
same or similar advantageous features would furnish basis to determine
 the market value. In this case, the guideline value alone has been
considered, which, in our view, is illegal.
(3) The Rent Controller and the Rent Control Appellate Authority, in the
present case, are not right in relying upon the guideline value,
maintained by the Revenue Department, for arriving at a fair rent, to be
fixed under Section 4 of the Tamil Nadu Buildings (Lease and Rent
Control) Act, 1960.
19. In view of the above settled position of law and conclusions, both the counsel
for the parties would now agree for setting aside the orders impugned and for
remanding the matter for fixing the fair rent in respect of the property during the
relevant point of time to follow the methods as mentioned above, after allowing the
parties to adduce evidence.
20. Therefore, it would be appropriate to remand the matter to the Rent Controller,
after setting aside the orders impugned, and to allow the parties to adduce
evidence, to help the Rent Controller in arriving at the market value, on the basis of
the evidence of bona fide sales between the vendor and the vendee of the lands
situated near about that land possessing same or similar advantageous features
during the relevant point of time which is, accordingly, ordered.”
20. Further in this case it is seen that the tenant who has sub-let the property filed
R.C.O.P. No.2053/2003 against the sub- tenant for fixation of fair rent at Rs.73,128/-,
claimed in that R.C.O.P. that the value of the very same site (which according to him is
Rs.10,00,000/- per ground, in the case on hand) is not less than Rs.1,20,00,000/- as on
30.10.2003. The landlord has filed C.M.P.No.8594/2006 in C.R.P.(NPD)No.974/2003
praying to receive the certified copy of R.C.O.P. No.2053/2003 as additional evidence in
CRP(NPD) No.974/2003.
21. To render substantial justice, Court can always take note of the subsequent
developments and accordingly C.M.P.No.8594/2006 is allowed and the certified copy of the
petition in R.C.O.P. No.2053/2003 was taken on file. A mere perusal of this petition would
prove that the tenant in this case as landlord filed a petition under Section 4 of the Act 18 of
1960 against his sub-tenant for fixing the fair rent at Rs.73,128/-. It was also clearly stated in
that petition that the petition property is located in a very important, precious, valuable and
well-known area and in the heart and soul of the city of Chennai and not even an inch of the
same is available anywhere in the locality. Thereafter, it was claimed in the petition that
the market value of the property is not less than Rs.1,20,00,000/- per ground.
22. The averments made by the tenant in R.C.O.P. No.2053/2003 is also to be
considered on remand by the Appellate Authority along with other evidence. The parties
may also be permitted to adduce additional evidence if any, by the Appellate Authority for
arriving at the cost of the land on the basis of the market value which is to be ascertained as
per the above said decision of the Full Bench of this Court reported in 2006 (2)CTC 433 and
the decision of the Division Bench reported in 1996 (2) L.W.658. The Appellate Authority is
hereby directed to decide the question of the cost of the land alone in the above said terms
and accordingly fix the fair rent of the property. The Appellate Authority shall try to dispose
of the matter within 2 months from the date of receipt of this order considering the fact that
RCOP was filed in the year 1994.
 23. In the result, the Civil Revision Petitions are disposed off with the above
directions. No costs. C.M.P.No.9288/2003 is closed.
Revision Petitions disposed off.

[2007 (2) TNCJ 10 (Mad)]

MADRAS HIGH COURT
BEFORE:
S. RAJESWARAN, J.
SANGHI TRANSPORT LTD. REP. BY
ITS GENERAL MANAGER ...Petitioner
Versus
ORIENTAL INSURANCE COMPANY
DIVISIONAL OFFICE AT TIRUVALLUR …Respondent.
[C.R.P. (P.D) No. 531 of 2004, decided on 6 June, 2007]
th

(A) Practice and procedure—If there are more than one forum where a suit can
be filed it is open to the parties by agreement to select a particular forum and exclude
the other forums in regard to claims which one party may have against the other under
its contract. (Para 10)
(B) Civil Procedure Code, 1908—Section 20—Territorial jurisdiction—
Consignment entrusted, insurance policy was effected and letter of subrogation was
given in Tiruvallur District— Accident took place in State of Maharashtra—
Consignee was in Jaipur—Courts in all these places have jurisdiction—Consideration
of lorry receipt—Courts in Jaipur only will have jurisdiction to try the suit—Trial
Court directed to return the plaint for presentation before its appropriate Court in
Jaipur. (Paras 14, 17to 19)
Case law.—2004(4) S.C. C. 677.
Counsel.—Mr. P. Ragunathan for M/s. T.S. Gopalan, for the petitioner; Mr. M.
Rajasekar, for the respondent;
JUDGMENT
S. RAJESWARAN, J.—This revision petition has been filed against the order dated
19.1.2004, passed in O.S.No.195/2002, on the file of Addl. District Judge, Fast Track Court
No.V, Chengalpattu at Tiruvallur.
2. The defendant in O.S.No.195/2002 on the file of the Addl. District Judge (Fast
Track Court No.V), Chengalpattu is the revision petitioner before this Court.
3. O.S.No.195/2002 was filed by the Oriental Insurance Company against the
revision petitioner herein for a judgment and a decree to pay a sum of Rs.10,47,597/- being
the amount paid to the consignee and Rs.20,398/- towards the survey fees with future
interest at the rate of 9% till recovery.
4. The case of the plaintiff is that Hindustan Motors Co., took out a policy of insurance
for the period in respect of all its vehicles manufactured till they reached the various
destination of its dealers. The defendant/revision petitioner is in the transport business and
the Hindustan Motors entrusted with the defendant in Adigathur a consignment four new
lancer cars for being transported to western Agencies in Jaipur. The said consignment was
transported through the defendant’s container which met with an accident on 5.10.1999 near
Dhule, Maharashtra. The consignee asked for delivery and the cars were handed over to
consignee on 20.10.1999 in a damaged condition. As the vehicles were badly damaged, the
consignee sent them back to Hindustan Motors. The consignee sent a demand to the plaintiff
for a sum of Rs.23,86,478/- being the damage value of 4 cars. The plaintiff paid a sum of
Rs.15,780/- as survey fees and on the basis of the estimate of the surveyor, the plaintiff paid
the consignee a sum of Rs.10,75,538.79 on 24.5.2000. On the same day, the said
consignee executed an assignment and special power of attorney in favour of the plaintiff.
After sending a notice on 3.11.2000 to the defendant, the plaintiff filed the above suit for the
aforesaid relief.
5. The defendant entered appearance and filed a written statement wherein it was
specifically stated that only the Courts in Jaipur alone will have jurisdiction to try the suit as
per the lorry receipt dated 30.9.1999 and therefore, the plaint is liable to be returned. The
defendant/revision petitioner made a demand to take up the issue of territorial jurisdiction
as a preliminary issue and the trial Court took up the issue as a preliminary issue and by order
dated 19.1.2004, the trial Court held that the Court has jurisdiction to try the suit. Aggrieved
by the order of the trial Court dated 19.1.2004, the above Civil Revision Petition has been
filed by the defendant under Article 227 of the Constitution of India.
6. Heard the learned counsel for the petitioner and the learned counsel for the
respondent. I have also perused the documents filed and the judgments referred to by them
in support of their submissions.
7. The learned counsel for the petitioner submitted that the consignment was sent to
M/s. Western Indian States Motors, M.I. Road, Jaipur and the lorry receipt issued by the
defendant has clearly stated that the consignment was booked subject to the condition that all
claims/suits shall be filed in the Court of jurisdiction of Jaipur only. Therefore, according to
the learned counsel, the jurisdiction of all other Courts is ousted by agreement between the
parties and therefore, the trial Court has committed an error in holding that it has got
jurisdiction to try the suit.
8. Per contra, the learned counsel for the respondent/plaintiff submitted that as a part
of the cause of action namely entrustment of the consignment of cars and the issuance of
letter of subrogation arose within the jurisdiction of the trial Court, the trial Court has got
jurisdiction to try the suit.
9. I have considered the rival submissions with regard to the facts and citations.
10. It is well settled that if there are more than one forum where a suit can be filed it is
open to the parties by agreement to select a particular forum and exclude the other forums in
regard to claims which one party may have against the other under the contract. At the same
time it is not competent to the party to the agreement to confer a Court with jurisdiction
which does not otherwise possess. The intention of the parties can be culled out from the use
of the expressions “only”, “alone”, “exclusive” and the like with reference to a particular
Court but the intention to exclude the Court’s jurisdiction should be reflected in clear,
unambiguous, explicit and specific terms.
11. Now let me consider whether the lorry receipt issued by the defendant on
30.9.1999 ousted the jurisdiction of the trial Court.
12. In the plaint filed in O.S.No.195/2002 it is stated that the trial Court has territorial
jurisdiction to entertain the suit as the cars were entrusted with the defendant at Adigathur
within the jurisdiction of the Court and the insurance was effected in Tiruvallur only. It is
further stated that any other term in the printed lorry receipt by the defendant cannot take
away the jurisdiction of the trial Court.
 13. In the lorry receipt dated 30.9.1999 it is specifically stated that all claims/suits shall
be instituted in the court of jurisdiction of Jaipur only. Relying on this clause, the revision
petitioner contended that only Courts in Jaipur will have jurisdiction exclusively.
14. Normally a litigation can be initiated in any one of the places where the cause of
action arose. In the case on hand, the consignment was entrusted, insurance policy was
effected and the letter of subrogation was given in Tiruvallur District within the jurisdiction
of the trial Court. The accident took place in State of Maharashtra and the consignee was in
Jaipur. Therefore, Courts in all these places will have jurisdiction to try the suit if parties by
consent confer jurisdiction on any one of the places exclusively excluding the Courts in
other places. If the lorry receipt dated 30.9.1999 is considered in proper perspective I am of
the considered view that the Courts in Jaipur only will have jurisdiction to try the suit.
15. In 2004 (4) SCC 677 (New Moga Transport Co. v. United India Insurance
Co .Ltd.), a similar question came up for consideration before the Hon’ble Supreme Court. In
that case, the second plaintiff purchased certain articles which were booked in 29 bales. The
materials were booked with a transport company for transportation to Barnala. The
consignment reached Barnala, but on account of fire which took place, there was destruction
of whole of the materials. The second plaintiff lodged a claim and the 1st plaintiff settled
their claim and on the basis of Letter of Subrogation issued by the 2nd plaintiff the 1st
plaintiff filed a suit against the transport company in Barnala. The transport company
took a specific plea that the Court at Barnala had no jurisdiction to deal with the suit as in the
consignment note it was stated that the Court in Udaipur alone had jurisdiction to deal with
the matter. The trial Court did not accept the plea of the transport company. But the first
appellate Court set aside the judgment of the trial Court. The High Court restored the
judgment of the trial Court by holding that the plaintiffs were entitled to the relief and
the Court at Barnala had jurisdiction. The Supreme Court in the above decision set aside the
order of the trial Court, restored the order of first appellate Court and directed the trial Court
to return the plaint to enable the plaintiff to present it before the proper Court at Udaipur.
16. The relevant portion of the order of the Supreme Court reads as under:
“8. Section 20, CPC reads as follows:
‘20. Other suits to be instituted where defendants reside or cause of action arises.
—Subject to the limitations aforesaid, every suit shall be instituted in a Court
within the local limits of whose jurisdiction
(a) the defendant, or each of the defendants where there are more than one, at the
time of commencement of the suit, actually and voluntarily resides, or carries on
business, or personally works for gain; or
(b) any of the defendants, where there are more than one, at the time of
commencement of the suit, actually and voluntarily resides, or carries on
business, or personally works for gain, provided that in such case either the leave
of the Court is given, or the defendants who do not reside or carry on business,
or personally work for gain, as aforesaid, acquiesce in such institution: or
(c) the cause of action, wholly or in part, arises.
Explanation.—A corporation shall be deemed to carry on business at its sole or
principal office in India or, in respect of any cause of action arising at any place
where it has also a subordinate office, at such place.’
9. Normally, under clauses (a) to (c) the plaintiff has a choice of forum and cannot
be compelled to go to the place of residence or business of the defendant and
can file a suit at a place where the cause of action arises. If the defendant desires
to be protected from being dragged into a litigation at some place merely because
the cause of action arises there it can save itself from such a situation by an
exclusion clause. The clear intendment of the Explanation, however, is that where
the corporation has a subordinate office in the place where the cause of action
arises it cannot be heard to say that it cannot be sued there because it does not carry
on business at that place. Clauses (a) and (b) of Section 20 inter alia refer to a
Court within the local limits of whose jurisdiction the defendant inter alia “carries
on business”. Clause (c) on the other hand refers to a Court within the local limits
of whose jurisdiction the cause of action wholly or in part arises.
10. On a plain reading of the Explanation to Section 20, CPC it is clear that the
Explanation consists of two parts: (i) before the word “or” appearing between the
words “office in India” and the words “in respect of”, and (ii) the other thereafter.
The Explanation applies to a defendant which is a corporation, which term would
include even a company. The first part of the Explanation applies only to such
corporation which has its sole or principal office at a particular place. In that
event, the Court within whose jurisdiction the sole or principal office of the
company is situate will also have jurisdiction inasmuch as even if the defendant
may not actually be carrying on business at that place, it will be deemed to carry
on business at that place because of the fiction created by the Explanation. The
latter part of the Explanation takes care of a case where the defendant does not
have a sole office but has a principal office at one place and has also a subordinate
office at another place. The expression “at such place” appearing in the
Explanation and the word “or” which is disjunctive clearly suggest that if the case
falls within the latter part of the Explanation it is not the Court within whose
jurisdiction the principal office of the defendant is situate but the Court within
whose jurisdiction it has a subordinate office which alone has the jurisdiction
“in respect of any cause of action arising at any place where it has also a
subordinate office”.
11. Section 20, before the amendment of CPC in 1976, had two Explanations being
Explanations I and II. By the Amendment Act, Explanation I was omitted and
Explanation II was renumbered as the present Explanation. Explanation which
was omitted reads as follows:
‘Explanation I.—Where a person has a permanent dwelling at one place and also a
temporary residence at another place, he shall be deemed to reside at both places in
respect of any cause of action arising at the place where he has such temporary
residence.’
12. This Explanation dealt with the case of place of residence of the
defendant and provided with regard to a person having a permanent dwelling at
one place and also temporary at another place, that such person shall be deemed to
reside at both places in respect of any cause of action arising at the place where he
has such temporary residence. The language used in Explanation II, on the other
hand, which is the present Explanation, was entirely different. Had the intention
been that if a corporation had its principal office at one place and a
 subordinate office at another place and the cause of action arose at the place
where it had its subordinate office it shall be deemed to be carrying on
business at both places, the language used in Explanation II would have been
identical to that of Explanation I which was dealing with a case of a person
having a permanent dwelling at one place and also temporary residence at another
place.
13. The above position was noted in Patel Roadways Ltd. v. Prasad Trading Co.,
1991 (4) SCC 270.
14. By a long series of decisions it has been held that where two Courts or more
have jurisdiction under CPC to try a suit or proceeding, an agreement between the
parties that the dispute between them shall be tried in any one of such Courts is not
contrary to public policy and in no way contravenes Section 28 of the Indian
Contract Act, 1872. Therefore, if on the facts of a given case more than one Court
has jurisdiction, parties by their consent may limit the jurisdiction to one of the
two Courts. But by an agreement parties cannot confer jurisdiction on a Court
which otherwise does not have jurisdiction to deal with a matter (See Hakam Singh
v. Gammon (India) Ltd., 1971 (1) SCC 286 : AIR 1971 SC 740 and Shriram City
Union Finance Corpn.. Ltd. v. Rama Mishra, 2002 (9) SCC 613: AIR 2002 SC
2402.
15. In the aforesaid factual background, the facts of the case at hand have to be
looked into.
16. Had it only been indicated in the consignment note that the Court at head office
city had jurisdiction then in the absence of a precise indication of the place what
would have been the consequence, we are not presently concerned, more
particularly, when the consignment note itself had indicated that the Court at
Udaipur alone had jurisdiction.
17. As was observed by this Court in Shriram case, 2002 (9) SCC, 613 : AIR 2002
SC 2402, referring to Hakam Singh case, 1971 (1) SCC 286 : AIR 1971 SC 740, an
agreement affecting jurisdiction of Courts is not invalid. It is open to the parties to
choose any one of the two competent courts to decide the disputes. Once the
parties bind themselves as such it is not open for them to choose a different
jurisdiction.
18. Above being the factual and legal position, the inevitable conclusion is
that the High Court was not justified in upsetting the order of the first appellate
Court. It is not a case where the chosen Court did not have jurisdiction. The
only question, therefore, related to exclusion of the other Courts.”
17. The above decision of the Supreme Court will squarely apply to the facts of this
case and if that be so, the only conclusion that could be arrived at is that the Courts in Jaipur
only will have jurisdiction to try the suit.
18. Hence, I am inclined to interfere with the order of the trial Court and accordingly
the same is set aside. The trial court is directed to return the plaint to the
respondent/plaintiff with appropriate endorsement under its seal and the respondent/plaintiff
is directed to present the same within a period of 10 weeks from the date of endorsement of
return by the trial Court before the proper Court in Jaipur.
 19. With the above direction this civil revision petition is allowed. No costs.
C.M.P. No.5373/2004 is closed.
Revision Petition allowed.

[2007 (2) TNCJ 17 (Mad)]

MADRAS HIGH COURT
BEFORE:
S. RAJESWARAN, J.
NATESAN PILLAI …Petitioner
Versus
RADHAKRISHAN ..Respondent.
[C.R.P. (N.P.D) No 833 of 2003, decided on 6 June, 2007]
th

Trust—Governed by Scheme decree—Appointing trustees to the Board—Out of

the 6 posts of trustees 4 became vacant—Filling up of—Requisition made by Chairman
requesting the scheme Court to consider the vacancy occupied by T.K.S belonging to
Karukudi family as a general vacancy instead of a vacancy for the Karukudi family—
Request rejected by the scheme Court—Scheme Court appointed 4 trustees belonging
to the 4 families—Legality of—No challenge made to the order rejecting the request of
the Chairman of Board—Now not open to challenge the appointment made from
Karukudi family—Representation of Pallavarayanapettai family is already there—6
posts existing and only five families from where appointments to be made—There is
always a possibility of one family getting two posts—Scheme Court committed no
infirmity by appointing person as a trustee of A.V. Charities. (Paras 12 to 16)
Counsel.—Mr. S. Sounthar, for the petitioner; Mr. T. R. Rajagopalan, Senior Counsel,
for Mr. A. Muthukumar, for the respondent.
JUDGMENT
S. RAJESWARAN, J.—This revision petition has been filed against the order dated
26.12.2002 made in O.S.No.68/1948 as amended by O.S.No.17/1960, on the file of the
Principal Sub-Court (Scheme Court), Myladudhurai
2. The appointment of the respondent as a trustee of A.V. Charities in the vacancy
caused by one Thiru Sethuraman by the Scheme Court on 26.12.2002 in O.S.No.68/1948 as
amended by O.S.No.17/1960 by the Principal Sub-Court, Myladudhurai (scheme Court) has
been challenged by the revision petitioner in this Civil Revision petition.
3. A.V. Charities, Myladudhurai is a Trust governed by a scheme decree made in
O.S.No.68/1948 as amended in O.S.No.17/1960 on the file of the Principal Sub-Judge,
Myladudhurai. The management of the trust vest in a Board of trustees consisting of 6
trustees. While appointing the trustees to the Board, the members of the original 5 families
which gave the original endowment, namely, (1) Anbanathapuram family, (2)
Pallavarayanpettai family, (3) Enathimangalam family (4) Karukudi family and (5)
Kanganaputhur family are to be appointed as far as possible.
4. Out of the 6 posts of trustees 4 became vacant during the relevant time. In those 4
vacancies people from Anbanathapuram, Karukudi, Pallavarayanpettai and Kanganaputhur
families were holding the posts of trustees before they became vacant. Therefore, 4 trustees
were to be appointed and the chairman of the trustees wrote letters to the scheme Court
requesting the Court to fill up the 4 vacancies. A requisition was made by the Chairman in
his letter dated 6.4.2002 requesting the scheme Court to consider the vacancy occupied by
Thiru K.Sethuraman belonging to Karukudi family as a general vacancy instead of a vacancy
for the Karukudi family. This request dated 6.4.2002 was rejected by the scheme Court by its
letter dated 8.4.2002. Thereafter the scheme Court after going through the application
submitted by the eligible candidates appointed 4 trustees, belonging to the 4 families in its
order dated 26.12.2002.
5. The respondent herein was appointed as a trustee by the scheme Court on behalf of
Karukudi family and this appointment alone was challenged before this Court by the
petitioner alone, who also submitted an application to consider him for the appointment of
trustee in the place of Thiru K. Sethuraman who was holding the post earlier.
6. Heard the learned counsel for the petitioner and Mr. T. R. Rajagopalan, learned
senior counsel for the respondent. I have also perused the documents filed and the judgments
referred to by them in support of their submissions.
7. The learned counsel for the petitioner submitted that the scheme Court is wrong in
considering the vacancy as a vacancy belonging to Karukudi family and rejecting the
application of the petitioner. He relied on the earlier decision of this Court with respect
to very same trust made in C.R.P.No.448/1998 dated 23.2.98.
8. Per contra, Mr. T. R. Rajagopalan, the learned senior counsel for the respondent
submitted that the scheme Court has correctly appointed the respondent as the trustee and
there is no illegality in his appointment. He further submitted that having not challenged the
order of the scheme Court dated 8.4.2002 rejecting the request of the Chairman of the Board
to treat the vacancy as a general vacancy, it is not open to the petitioner to challenge the order
of the scheme court now. The learned senior counsel also drew support from the very same
decision dated 23.2.98 made in C.R.P.No.448/98.
9. I have considered the rival submissions carefully with regard to facts and
citations.
10. By its order dated 26.12.2002 the scheme Court appointed 4 trustees in the existing
vacancies and the appointment of the respondent alone is challenged before this Court by
the petitioner. It is his case that already a trustee is very much there representing Karukudi
family and therefore the vacancy caused after the period of Thiru K. Sethuraman should have
been considered as general vacancy.
11. I am unable to accept the contentions raised by the petitioner.
12. It is not in dispute that a request was made by the Chairman of the Board by
letter dated 6.4.2002 requesting the scheme court to treat the vacancy caused by the efflux of
time of membership of Thiru K. Sethuraman as general or common vacancy. The scheme
Court by its letter dated 8.4.2002 rejected this request by informing that even though Thiru V.
Arunachalam belonging to Karukudi family was appointed as a trustee, he was appointed in
the common vacancy and therefore the present vacancy has to be considered only from the
Karukudi family. As rightly pointed out by the learned senior counsel, this letter was not at
all challenged by the petitioner herein at the appropriate time and having not done so it is not
now open for him to challenge the appointment of the respondent made by the scheme Court.
13. On the basis of the letter dated 8.4.2002 the scheme Court considered only the
applicants who belonged to Karukudi family. As the revision petitioner did not belong to the
Karukudi family the scheme Court rejected his application and considered the other
applicants and finally appointed the respondent herein as the trustee. The petitioner herein
belonged to Pallavarayanapettai family and the scheme Court in the very same order dated
26.12.2002 appointed one Thiru R.Sajjal, S/o. Sri Rammohan Shanmugam as a trustee
belonging to Pallavarayanpettai family. Therefore it cannot be said that by appointing the
respondent herein as a trustee there was no representation for the Pallavarayanpettai family.
The petitioner was appointed as a trustee belonging to Pallavarayanpettai family by the
scheme Court on 21.4.1997 along with R. Sethuraman. But the revision petitioner resigned
from the post of trusteeship by his letter dated 2.11.2001 and the same was accepted by the
scheme Court by its order dated 5.11.2001 and in his place Thiru V. Arunachalam was
appointed as a member of the Board of Trustees. When the petitioner was holding the
post of trusteeship S. Alagesan was also holding the post of trusteeship representing
Pallavarayanpettai family. Therefore, considering the fact that there are 6 posts and only
five families, there is always a possibility of one family getting two posts.
14. In CRP.No.448/98, the revision petitioner’s appointment as a trustee by the scheme
Court by its order dated 21.4.97 was challenged before this Court by one C. Senthilvel,
on the ground that the Pallavarayanpetta family was already represented by one Alagesan and
therefore, the present revision petitioner’s appointment, who also belongs to very same
Pallavarayanpettai family was bad. While rejecting the contentions of the revision petitioner
in CRP No.448/98, this Court by order dated 23.2.98 held that a reading of clause 5(c) of the
scheme makes it clear that the scheme Court shall proceed to call for applications and make
appointments to the vacancies and give regard to the representation of the original 5
families and the scheme Court is given the discretion to take note of the efficient
administration while giving representation to each family.
15. In the light of the above discussions and the decision of this Court made in CRP
No.448/98, I do not find any infirmity in the order of the scheme Court dated 26.12.2002 by
appointing the respondent as a trustee of A.V.Charities.
16. Hence, I find no merits in this civil revision petition and the same is dismissed. No
costs. C.M.P.No.8773/2003 is also dismissed.
Revision Petition dismissed.

[2007 (2) TNCJ 21 (Mad)]

MADRAS HIGH COURT
BEFORE:
S. RAJESWARAN, J.
PERUMAL NAIDU AND ANOTHER ...Petitioners
Versus
T.V. BADRINATH …Respondent
[C.R.P. (N.P.D.) Nos. 718 and 719 of 2003, decided on 6 June, 2007]
th

Tamil Nadu Buildings (Lease and Rent Control) Act, 1960—Section 4—Fair rent
—Fixation of—Premises situated in the centre of the town—Extent of property is 140
sq. ft.—Building valued at Rs. 61,426/-on the basis of the guideline value fixed by the
Sub-Registrar office—Advocate Commissioner arrived at the fair rent at Rs. 898/-p.m.
—Rent Controller arrived at Rs. 1,000/- p.m.— Appellate Authority fixed the value of
land at 1,22, 851.64—Fair rent @ Rs. 1,675/- p.m. taking into account the evidence of P
W.2 who is doing real estate business—Similarly situated shops in the same locality are
fetching a sum of Rs. 2,000/-p.m.—Appellate authority correctly disregarded the
guideline value and considered the location of shop while fixing the fair rent. No
interference warranted. (Paras 7 to 10)
Case law.—2006(2) C.T.C 433 (F.B).
Counsel.—M/s. P. Prem Kumar, for the petitioner; Mr. D. Rajagopal, for the
respondent.
JUDGMENT
S. RAJESWARAN, J.—These revision petitions have been filed against the order dated
1.11.2002, in R.C.A.Nos.6 and 8 of 2002 passed by the Rent Control Appellate Authority
(Principal Sub-Judge, Cuddalore) against the order dated 12.4.2002 in R.C.O.P. No.10/1999,
on the file of the Rent Controller (Principal District Munsif), Cuddalore, respectively.
2. The tenant is the petitioner in both the revision petitions. He is aggrieved by the
common order of the Rent Control Appellate Authority dated 1.11.2002 made in R.C.A.
Nos.6/2002 and 8/2002.
3. The respondent herein filed R.C.O.P. No.10/1999 under Section 4 of the Tamil
Nadu Buildings (Lease & Rent Control) Act, 1960, hereinafter called ‘the Act’, for fixing the
fair rent for the petition schedule property at Rs.2,000/- per month. In his petition the
respondent herein stated that the original tenant Perumal Naidu was paying only Rs.50/- per
month for the petition premises wherein he was doing a jewellery business and the property
is located in a very valuable place where a number of jewellery shops are doing good
business and similarly located shops are fetching a monthly income of Rs.2,000/- per month.
Therefore the respondent prayed to fix the fair rent at Rs.2,000/- per month.
4. The original tenant resisted the fair rent petition by contending that the monthly
rent of Rs.50/- itself is the fair rent and he is not doing any jewellery business in the petition
premises but was doing only jewellery repair work. The Rent Controller after going through
the evidence, fixed a sum of Rs.1,000/- per month for the petition premises and aggrieved by
the same the tenant filed R.C.A. No.6/2002 and the landlord filed R.C.A. No.8/2002 . The
Appellate Authority increased the fair rent fixed by the Rent Controller from Rs.1,000/-
to Rs.1,675/- per month in R.C.A. No.8/2002 by allowing it partly and dismissed R.C.A.
No.6/2002 filed by the tenant. Aggrieved by the same, the tenant alone has filed both the
above revision petitions.
5. Heard the learned counsel for the petitioners and the learned counsel for the
respondent. I have also perused the documents filed in support of their submissions.
6. During the pendency of the revision petitions the original tenant/1st revision
petitioner passed away and his daughter was brought on record as his Legal Representative
by order dated 7.10.2005.
7. It is not in dispute and in fact admitted by both the parties that the petition premises
is situated in the centre of the town. But the extent of the property was stated as 140 sq.ft., by
the landlord and 117 sq.ft., by the tenant. After going through the municipality tax receipt
and the report of the Court appointed commissioner, the Rent Controller found that the claim
of the landlord was correct and the extent is 140 sq.ft., and not 117 sq.ft. The value of the
building was arrived at as per the valuation of the P.W.D. Engineer and the value of the land
was valued at Rs.61,426/- by the advocate commissioner on the basis of the guideline value
fixed by the Sub-Registrar office. Based on this guideline value the advocate-commissioner
arrived at the fair rent at Rs.898/- per month and the Rent Controller arrived at
Rs.1,000/- per month.
8. The Appellate Authority, concurred with the findings of the Rent Controller in all
other aspects except the value of the land fixed by the Rent Controller at Rs.61,466/- on the
basis of the guideline value. The appellate authority relied on the evidence of P.W.2,
who is doing real estate business, who deposed that similarly situated shops in the same
locality are fetching a sum of Rs.2,000/- per month. Accordingly the appellate authority fixed
the value of the land at Rs.1,22,851.64 and fixed the fair rent at Rs.1,675/- per month.
9. I do not find any illegality or infirmity in the order of the Appellate Authority
warranting interference by this Court. The Rent Controller has wrongly fixed the value of the
land by relying on the guideline value which is not correct as per the Full Bench decision of
this Court reported in 2006 (2) CTC 433 (Sakthi & Co. v. Sri Desigachari). Therefore, the
Appellate Authority has correctly disregarded the guideline value and considered the
location of the shop and the evidence of P.W.2, a real estate businessman and arrived at
the land value, which cannot be found fault with. Therefore, I do not find any grounds to
interfere with the order of the Appellate Authority in fixing the fair rent at Rs.1,675/- per
month to the petition premises.
10. In the result, both the civil revision petitions are dismissed. No costs.
C.M.P.No.7809/2003 is also dismissed.
Revision Petitions dismissed.

[2007 (2) TNCJ 24 (Mad)]

MADRAS HIGH COURT
BEFORE:
S. RAJESWARAN, J.
D. MURALIDHARAN ....Petitioner
Versus
CHENNAPPAN (DIED) ...Respondent
[C.R.P. (P.D) No 323 of 2005, decided on 6 June, 2007]
th

(A) Constitution of India, 1950—Article 227—Writ jurisdiction—Invoking of—

Against condonation of delay of 1664 days in representing the suit papers subject to
payment of cost of Rs. 1,500/- to other side—Legality of Advocate mixed up the suit
papers with other old records and the same was not traced out by the advocate—
Reason given for condonation of delay—Trial Court exercised its discretion by
condoning the delay at the same time awarding a cost of Rs. 1,500/- to the defendant—
Delay in re-presentation cannot be put to the account of the party—Court has to take
care to see that justice does not suffer—Proper care taken—No interference
warranted. (Paras 7, 11 to 13)
(B) Limitation Act, 1963—Section 5—Civil Procedure Code, 1908—Section 151—
Petitions to condone delay in representation—Petition filed for condonation of delay in
the proper presentation—Difference between—Courts should have different
consideration.
(Paras 8 to 11)
Case law.—2006 (1) C.T.C. 187; 2002 (1) LW 397; 2003 (1) LW 585; 1978 T.L.N.J.
332; 1993 T.L.N.J. 375; 1998 (2) C.T.C. 533; 2003 (11) SCC 727; 2005 (3) MLJ 439; 1995
(2) LW 220; 2005 (3) SCC 752; 2006 (2) C.T.C 388; 2006 (1) C.T.C 191; 2006 (1) C.T.C.
45;
Counsel:—Mr. N. Manokaran, for the petitioner; Mr. M.M. Sundaresh, for the
respondent.
JUDGMENT
S. RAJESWARAN, J.—This revision petition has been filed against the order dated
6.1.2004, passed in I.A.No.122/2003 in unnumbered suit on the file of the Principal Sub-
Court, Erode (now numbered as O.S.No.105/2004 on the file of the Principal District
Munsif’s Court, Erode).
2. The defendant in O.S.No.105/2004 on the file of the Principal District Munsif Court,
Erode is the revision petitioner before this Court. He is aggrieved by the order of the trial
Court dated 6.1.2004 made in I.A.No.122/2003 by which the trial Court condoned the
delay of 1664 days in representing the suit papers on condition that a sum of Rs.1,500/- to be
paid to the other side as cost. Subsequent to the order dated 6.1.2004 the suit was numbered
as O.S.No.105/2004.
3. Heard the learned counsel for the revision petitioner and the learned counsel for the
respondents. I have also perused the documents filed and the judgments referred to by
them in support of their submissions.
4. The learned counsel for the revision petitioner strenuously contended that there is no
difference in between a petition filed to condone the delay in presentation and the petition
filed to condone the delay in representation and the trial Court has failed to take note of the
fact that a valuable right has accrued to the revision petitioner by condoning such a huge
delay. He relied on the decision of this Court reported in 2006 (1) CTC 187 (Muthusamy, A.
v. Muniammal) for the proposition that the very same principles as are applicable to condo
nation of delay in presentation would apply to the condonation of delay in re-presentation
also. He relied on the decision of this Court reported in 2002 (1) L.W.397 (Lalliammal v.
Thulasi & 6 others) for the proposition that when the counsel has not re-presented the papers
within the time, that is nothing short of a negligence and whatever right accrued to the other
side because of the delay could not be lightly treated. The learned counsel relied on a
decision of the Division Bench of this Court reported in 2003 (1) L.W.585 (Sundar
Gnanaolivu v. Rajendran Gnanavolivu) for the proposition that whenever there is lack of
bona fide or attempt to hoodwink the Court by the party by filing an application for
condonation of delay no indulgence should be shown by the Court.
5. Per contra, the learned counsel for the respondents submitted that there is a
difference between a petition filed for condoning the delay in filing and a petition filed to
condone the delay in re-presentation and more liberal approach should be shown
by the Court in the case of the latter. For this proposition, he relied on the decision of this
Court reported in 1978 TLNJ 332 (The General Manager, Heavy Vehicles Factory, Avadi
and another v. T.Shadrak) and the decision of the Division Bench reported in 1993 TLNJ
375 (Y.Cusbar v. K.Subbarayan). The learned counsel relied on the decisions of the
Supreme Court reported in 1998 (2) CTC 533 (Balakrishnan, N. v. M. Krishnamurthy) and
2003(11) SCC 727 (Bhagmal v. M.P.Coop.Marketing & Consumer Federation Ltd.) to
contend that when the delay has been condoned by the Court below by exercising its
discretion, the same cannot be interfered with by the Court either under Section 115 of
C.P.C., or under Article 227 of the Constitution of India. He relied on the decision of this
Court reported in 2005 (3) MLJ 439 (Yanaimal Thottam Trust v. B. Lakshmanan) to submit
that when technicalities and substantial justice are pitted against each other, the Courts should
always be in favour of the substantial justice rather than technicalities. He also relied on the
following decisions to submit that the word “sufficient cause” is to be liberally interpreted
and Courts must adopt pragmatic approach in justice oriented manner instead of
technical detection of sufficient cause:
(1) 1995 (2) L.W. 220 (Rama Iyer, P. v. V.Ramaswami Naidu).
(2) 2005 (3) SCC 752 (State of Nagaland v. LIPOK AO).
(3) 2006 (2) CTC 388 (Syed Nusarathullah v. Natarajan).
(4) 2006 (1) CTC 191 (Mohan, S. v. Cruz Mary).
(5) 2006 (1) CTC 45 (Joint Commissioner, (H.R.&C.E) v. Ambasamudram
Taluk.
6. I have considered the rival submissions with regard to facts and citations.
7. It is not in dispute that the suit was originally filed by R. Chinnappan whose Legal
Representatives are the respondents herein. The suit was filed for directing the
defendant/revision petitioner to pay a sum of Rs.59,500/- with subsequent interest at 12% per
annum till the date of realisation. The suit claim was on the basis of the promote executed by
the revision petitioner on 6.11.1985 for a sum of Rs.50,000/-. It is also not in dispute that the
suit was filed within the limitation period of 3 years from the date of execution of the
promote. The suit papers were returned on 2.1.1998 granting one month time to rectify the
defects and it was re-presented only in August, 2002 with a petition to condone the delay of
1664 days in re-presenting the suit and the petition filed in I.A.No.122/2003 was allowed by
the trial Court on condition that the original plaintiff should pay a sum of Rs1,500/- to the
other side on or before 12.1.2004. Aggrieved by this order only, the above civil revision
petition has been filed under Article 227 of the Constitution of India.
8. First let me consider whether there is any difference between a petition filed for
condonation of delay in the proper presentation pursuant to Section 5 of the Limitation
Act and the petition to condone delay in re-presentation under Section 151 of C.P.C.
9. In 1978 TLNJ 322 (cited supra), a learned Single Judge of this Court held that there
is a difference between these two petitions and the considerations relevant for a petition filed
to condone the delay in presentation for a proceeding will not apply to a petition filed to
condone the delay in re-representation of papers. The learned Judge went on to hold that
notice to respondent in a petition filed to condone the delay in re-representation is not
necessary and if any order is passed in condoning the delay in re-presentation, the other side
is not said to be the aggrieved party and he cannot challenge the order before the High Court
under Section 115 of CPC. The relevant portion of the order reads as under:
“I may point out in this context the difference between the condonation of delay in
the proper presentation of a particular proceeding pursuant to Section 5 of the
Limitation Act and the condonation of delay in the re-presentation of a
particular proceeding obviously under the inherent powers of the Court under
Section 151 of Code of Civil Procedure. In the former case there is a specific
provision in the statute, namely, the Limitation Act which imposes an obligation on
 the Court itself suo motu to reject a proceeding if it is barred by limitation. That
strictness is not available or applicable to a case of a delay in the re-
presentation of the proceeding in question. Consequently, the provisions and
considerations applicable to excusing the delay under Section 5 of the Limitation
Act will not apply to the question of excusing the delay in re-presenting the
papers and therefore, the considerations relevant to excusing the delay with
reference to petitions, disposable under the Limitation Act, will bear no analogy to
those relevant to a decision of the question in the present controversy. I have
proceeded on broad considerations and in particular with reference to the
distinction between the delay in the presentation of a proceeding and the delay in
the re-presentation of the papers with reference thereto. In view of the basis
difference between the two, I am of the opinion that the considerations relevant to
the former will not apply to the latter and in an application for excusing the delay
in re-presenting the papers in any proceeding, whether it be a suit, a Civil Revision
petition, a first appeal or a second appeal in any Court, notice to the respondent in
the main case is not necessary and even if such notice is given to the respondent
and he is heard and overruling his objection the delay is condoned, he cannot be
said to have been aggrieved in the sense of there being a judicial determination
against him so as to entitle him to approach the High Court under Section 115
Code of Civil Procedure. In view of this, I hold that this petition is not
maintainable and reject the same.”
10. A similar question came up before a Division Bench of this Court and the Division
Bench in its decision reported in 1993 TLNJ 375 (cited supra) held that delay in re-
presentation of papers happens several times due to the mistake of the advocates or the
advocate’s clerk and if there is undue delay in re-presentation of the papers it can be
compensated by awarding costs. The relevant portion of the order reads as under:
“This is not a case wherein the appeal has been filed out of time. This is a case in
which the appeal is filed in time. Therefore, it cannot be said that the decree under
appeal has assumed finality and the right has been accrued to the respondent. The
delay in re-presentation of the papers in the instant case, cannot be put to the
account of the party. Several times, it happens due to the mistake on the part of the
advocate’s clerk or the advocates in presenting the appeal. Therefore, the Court
has to take care to see that the justice does not suffer in such cases. If there is any
undue delay in re-presentation of the papers it can be compensated by awarding
costs. Therefore, we are of the view that when the appeal has been filed in time,
but there is inordinate delay in re-presentation of the papers returned for
rectification of the defects, by the appellate Court, the delay can be condoned on
taking a lenient view by compensating the other side on payment of costs.”
11. From the above two decisions it is very clear that a petition to condone the delay in
filing a petition and a petition to condone the delay in re-presenting the papers filed within
time, are not one and the same and a different consideration is warranted in the case of the
latter. It is true that a learned Single Judge of this Court in the decision reported in 2006 (1)
CTC 187 (cited supra) held that the principles applicable to the proceedings under Section 5
of the Limitation Act are applicable while considering the delay in re- presentation of
the papers. In view of the Division Bench decision reported in 1993 TLNJ 375 (cited supra),
I am bound to follow the above said Division Bench decision to hold that the Courts should
have different consideration for a petition filed under Section 5 of the Limitation Act and for
a petition filed to condone delay in re-presenting the papers. Further the Division Bench
judgment was not produced before the learned Single Judge who decided the case in 2006
(1) CTC 187 (cited supra).
12. The reason given by the plaintiff in O.S.No.105/2004 for condoning the delay of
1664 days in re-presenting the said papers is that the advocate mixed up the suit papers with
other old records and the same was not traced out by the advocate. Accepting the reason the
trial Court exercised the discretion by condoning the delay at the same time awarding a cost
of Rs. 1,500/- to the defendant. In such circumstances I do not find any reasons to interfere
with the order of the trial Court. Further the delay in re-presentation cannot be put to the
account of the party and the court has to take care to see that justice does not suffer in such
cases.
13. In the result, the above civil revision petition is devoid of merits and the same is
dismissed. No costs. C.M.P.No.3151/2005 is also dismissed.
Revision Petition dismissed.

[2007 (2) TNCJ 29 (Mad)]

MADRAS HIGH COURT
BEFORE:
PRABHA SRIDEVAN, J
INDIRA DEVARAJ BHAT …Appellant.
Versus
S. SRINIVAS AND OTHERS …Respondents
[A.S. No 937 of 1988, decided on 7 June, 2007.]
th

(A) Practice and procedure—Fraud and collusion cannot be proved, merely on

the ground that the mortgagee had managed to purchase the property in the name of
his wife—There must be convincing acceptable evidence. (Para
27)
(B) Transfer of Property Act, 1882—Section 69 (2) (a)— Nature of—Harsh
section—And if it requires a notice in writing—Then the least, that is required of the
mortgagor or the purchaser is to prove that the notice was given—Especially when the
mortgagors have denied receipt. (Para 28)
(C) Civil Procedure Code, 1908—Section 96—Appeal—Against dismissal of suit
for declaration and recovery of possession and rendition of accounts—Wife of a
mortgagee claims she has purchased the property in a sale out of Court at the instance
of the assignee of the interest from her husband—Appreciation of evidence—Glaring
infirmities in the alleged auction sale—Sale under Section 69 (2) (a) of the T.P. Act,
1882, no evidence of service of notice—No satisfactory evidence of sale—Inadequate
particulars given in sale proclamation—Close proximity of dates of transaction renders
the purchase vulnerable to doubt—Purchase price is pitifully low—No proof that the
mortgagee who brought the property to sale was discharged—Suit rightly dismissed.
No interference warranted in the appeal—Appeal dismissed.
(Para 28)
 (D) Transfer of Property Act, 1882—Section 69 (2) (a)— Mortgagor called upon
to pay both the principal and interest— Mortgagee was exercising his power under
provisions of the Act.
(Para 14)
Case law.—1968 (I) Mys. L. J. 69; 1972 (II) M.L.J. 390; AIR 1926 Mad 841; 1943 (I)
M L.J. 92; AIR 1929 Bom. 24; (2006) 2 S.C.C 385; AIR 1973 Mad 316; AIR 1983 Pat 151;
AIR 1995 Mad 491; AIR 2005 Karn. 426; AIR 1926 PC 109; AIR 1994 Mad 247 : AIR 1956
Him. Pra. 4; AIR 1921 Bom. 421; AIR 1922 Mad 390 (2); AIR 1918 Lower Burma 64; AIR
1967 SC 1296; AIR 1993 Bom. 203. AIR 1941 Bom 339;
Counsel.—Mrs. S. Ananda Bagavathi, for the appellant; Mr. T.V. Ramanujam, Senior
Counsel for Ms. M. Gunavalli (for R5); Mr.D. Rajagopal for Mr. S.M. Abdul Hameed (for
R2 and R3); Mr. Waran and Sairam (for R4); Mr. R. Thiagarajan for (R6 & R7), for
respondents.
JUDGMENT
PRABHA SRIDEVAN, J —The wife of a mortgagee claims she has purchased the
property in a sale out of Court, at the instance of the assignee of the interest from her
husband. There is no proof of notice of sale and the bid was for a low price and no evidence
of actual sale. Her suit was dismissed and she is the aggrieved appellant.
2. The facts in the plaint are as follows:
The suit property belonged to the first respondent who had purchased it on 08-05-
1958. He executed a simple mortgage on 07-05-1970 in favour of one Alagammai
Achi for a sum of Rs.20,000/- with interest at 12%. The mortgage deed contained conditions
with regard to right of sale under Section 69 of the Transfer of Property Act. Neither the
principal nor the interest was paid. Therefore, the said Alagammai Achi brought the schedule
property for sale through auctioneers on several occasions, but the sale was averted. On
27-08-1981, Alagammai Achi assigned the mortgage in favour of Dr. D.N. Bhat. The
documents of title were handed over to Dr. D.N. Bhat. He in turn assigned his interest to one
V.S. Sambandha Mudaliar under a deed dated 23-11-1981. This assignee issued a notice
dated 12-01-1982 calling upon the first respondent to pay the entire principal and interest
due. But neither the principal nor the interest was paid. Thereafter, Sambandha Mudaliar
handedover the documents of title to the Government Auctioneers, the fifth respondent for
sale under Section 69 of the T.P. Act. This was advertised in “Dinakaran” Newspaper dated
01-05-1982 and in “Dinamalar” Newspaper dated 30-04-1982 and pamphlets were also
distributed to the general public. The auction was also scheduled to be held on 05-05-1982
at the premises of the suit property. There was sufficient publicity and there were several
bidders. The plaintiff-appellant was declared as the highest bidder and her bid of Rs.46,500/-
was accepted. The bid amount is paid to the fifth respondent who paid the amount due
under the mortgage to Sambandha Mudaliar. The mortgage was discharged and cancelled.
Thereafter, the fifth respondent sent a notice to the first respondent on 18-05-1982
calling upon him to receive the balance. There was no response to this. Thereafter, the said
Sambandha Mudaliar, executed a sale deed on 30-07-1982 in favour of the appellant and the
same was registered. She has therefore, become the absolute owner of the property
and has taken symbolic possession. There was a tenant in this suit property who had been
inducted by the first respondent. He vacated the property all of a sudden without informing
the appellant. The respondents 1 to 4 in collusion have entered the suit property and are
occupying the same illegally. The appellant sent a telegram on 26-10-1982 to receive the
balance amount and to vacate the premises. She has also sent a notice through the counsel,
the respondents failed and neglected to comply with the notice. Since they are in occupation
illegally and wrongfully, the appellant is entitled to mesne profits. The suit was therefore,
filed for declaration and recovery of possession and rendition of accounts. The plaintiff is the
appellant. The second, third and fourth respondents are the wife, daughter and son of the first
respondent. The respondents 6 and 7 have been impleaded by order dated 12-01-2007. There
have been applications for withdrawal of appeal which withdrawal was denied and the appeal
was restored, but it is not necessary to go into those aspects now.
3. The first respondent remained ex parte. It is alleged that he had become an ascetic.
The second and fourth respondents filed a written statement which was adopted by the third
respondent. In the written statement, it is stated that the fourth respondent filed O.S.No.8790
of 1975 for partition, which was dismissed for default. All the other averments were denied
and the appellant was put to strict proof of the same. In particular, the respondents denied
receipt of notice dated 12-01-1982, the publication of auction sale in the newspapers or the
conduct of the sale. They denied knowledge of payment to Sambandha Mudaliar and the
execution of the sale deed by Sambandha Mudaliar. According to them, the occupation of the
property is in their own right.
4. The appellant examined herself as P.W.1. No other witness was examined on her
behalf. On behalf of the respondents, the fourth respondent was examined as D.W.1. The
appellant marked 18 documents. The respondents marked one document. The Trial Court
came to the conclusion that the conduct of the sale was not bona fide and therefore, the sale
under Section 69 of the Transfer of Property Act was not in accordance with law and also
that no notice was given before the sale was conducted and dismissed the suit.
5. The learned counsel for the appellant submitted that Section 69 (2) (a) and (b) must
be considered alternatively. If the mortgagee is in arrears of rent for the period mentioned in
subsection (2) (b), then no notice need be given and relied on State of Mysore v. Dasappa
Naidu, 1968 (1) Mys. LJ 69. The learned counsel also submitted that the Trial Court had
erred in finding that the sale is irregular because the bid of the appellant was far below the
market value and relied on P.L. Chakrapani Naidu v. T. Gopal Mudaliar, 1972 (II) MLJ 390,
where a Division Bench of this Court held that merely because the property does not fetch a
fair price, the sale should not be adjourned. In other words, the low price is not enough to
infer collusion. According to the learned counsel, a sale was properly conducted and the
appellant was the highest bidder, there is no illegality in the sale and the trial Court had
erroneously set aside the sale.
6. Mr. T. V. Ramanujam, learned senior counsel appearing for the mortgagors
submitted that the question whether notice is necessary and whether this is a case falling
under Section 69 (2) (a) or 69 (2) (b) of the Transfer of Property Act, does not required to be
answered, since the defence of the respondents / defendants that there was no sale at all on
05.05.1982 has been accepted by the learned Judge and there is no evidence to prove that
there was sale on that date.
7. The learned counsel for the respondent 6 & 7 would submit that in this case mala
fide is writ large and this Court should not interfere with the well considered judgment of the
Trial Court. The learned counsel submitted that after having claimed that she had issued a
notice for recovery of the principal under Section 69 (2) (a) of the T.P. Act, it is not now
open to the appellant to contend that the sale was for recovery of interest under Section 69 (2)
(b) and therefore, no notice need be sent. He also submitted that the assignee of the
mortgage from the Alagammai Achi, Dr.D.N.Bhat, has purchased the property himself,
through his wife, the appellant. The intervening mortgagee-assignee viz., Sambandha
Mudaliar is only a fictitious person. Since the appellant’s husband could not purchase the
property himself invoking the provisions of Section 69 of the T.P. Act, he created an
assignment and thereafter, procured the mortgaged property in the name of his wife, the wife
being the appellant. The learned counsel relied on various judgments to show that the
mortgagee cannot be the purchaser.
8. The learned counsel Mr.D.Rajagopal, appearing for R2 and R3 submitted that, in
addition to the other submissions made on behalf of the respondents, notice in accordance
with Section 131 of the Transfer of Property Act was also not issued and in this case, there
have been two assignments after the original mortgage in favour of Alagammai Achi, of
which the mortgagors had no notice.
9. The questions to be answered in this appeal is:
(1) Whether the notice of the auction is imperative ?
(2) Whether an auction sale actually was held on 05.05.1982 ?
10. The specific case of the defence is that there was no sale on 05.05.1982 at 4 p.m.
The evidence of P.W.1 in this regard is that there were 8 or 9 persons present at the time of
auction and that she is not aware of their names and she has also denied the suggestion that
there was no auction. The documents with regard to the auction are Ex.A.8, the advertisement
in Dinakaran, Ex.A.9, the advertisement in Dinamalar and Ex.A.10, sale proclamation of the
auction proceedings. Apart from this, the appellant has not produced any other evidence to
show that sale was in fact conducted on that day, by either examining the auctioneer or
producing the auction register. As regards the assignment in favour of her husband, P.W.1
says “me;j mlkhdj;ij gl;L vd;gth; nghpy; nknghth; bra;jjw;fhd Mtzk;///”. The tenor of the
evidence is to the effect that this assignee is a third person. Though there is no cross-
examination, it is apparent without any investigation that this “gl;L” is Dr. Bhat, her husband.
P.W.1 says that it is not true to say that the defendant had no notice of the sale; and that it is
not true that there was no sale. P.W.1 could have examined V.S.Sambandha Mudaliar, who
exercised the power under Section 69 to prove the issuance of notice; she could have
examined the 5th defendant to prove conduct of sale. But except for her own evidence, there
is nothing else. D.W.1 has stated in his evidence that there was no sale and on the date of
auction, the property was worth 4 or 5 lakhs. In the cross-examination, after re-
examination, there is a suggestion that many people attended the sale. But, regards the value
of the property, there is no cross- examination. The value of the property for purpose of
registration is Rs.1,31,000/-, the value as per D.W.1, which stands unrebutted is 4-5 lakhs,
the value for which the property is purchased is Rs.46,500/-.
11. As regards notice, under Section 69 (2) (a) and 69 (2) (b) of the Transfer of
Property Act, in the plaint, the appellant had stated that notice was issued on 12.01.1982 by
the assignee from the appellant’s husband Dr.D.N.Bhat, calling upon the mortgagor to pay
“entire Principal in interest due as on that date”. The defendants 2 and 4 in their written
statement has stated that they are not aware “ that V.S.Sambandha Mudaliar issued a notice,
dated 12.01.1982 to the first defendant, calling upon him to pay the entire principal and
interest due under the mortgage.”
12. Ex.A.6 is the legal notice issued on behalf of V.S.Sambandha Mudaliar, it is dated
12.01.1982. Ex.A.7 is the notice issued to the mortgagor by auctioneer, it is dated
20.02.1982. No proof has been filed to show that this notices have been received by the
mortgagor. When the written statement categorically states that the respondents are not aware
of this notice, the appellant ought to have proved by evidence, that the notice was indeed
served on the mortgagor and either acknowledged by him or refused to receive by him, as the
case may be. The acknowledgment cards should have been produced. This burden of proving
the service of notice has not been discharged by the appellant.
13. It is no doubt true that in State of Mysore v. Dasappa Naidu, 1968 (1) Mys. LJ 69,
a Division Bench of the Mysore High Court has held that the clauses (a) and (b) of sub-
section (2) of Section 69, are in the alternative and when the mortgagor owes arrears of
interest of over Rs.500/-, no notice of sale is required to be served on the mortgagor. But,
this is not the case of the appellant in her plaint. By her notice, she called upon the mortgagee
to pay the entire principal and interest and not just the arrears of interest. The property was
brought to sale clearly for the default committed by the mortgagor in payment of principal
and interest. This is clear, not only from Ex.A6 and Ex.A7, but also from the plaint. Even in
the evidence, the appellant has not stated that the demand was for arrears of interest
alone. Notices had been issued by on behalf of Sambanda Mudaliar, demanding principal and
interest and it is to recover this amount that the property was brought to sale.
14. In Purasawalkam Hindu J S.Nidhi v. Kuddus Sahib, AIR 1926 Mad 841, a
Division Bench of this Court was called upon to consider whether the dismissal of the
mortgagor’s suit was justified on the ground that the power of sale was improperly exercised
and that the notice was not properly given. Kumaraswami Sastri, J held that “Now, in this
case, reading Section 69 with the Articles of Association and the mortgage deed, I am
clearly of opinion that before the sale is held for the purpose of recovering principal and
interest due on the mortgage, notice has to be given and the learned Judge was right in
coming to the conclusion that the want of notice was an irregularity because the fund did not
act in a manner that would entitle them to have sold the property rightly. There was no notice
given before the sale.”
15. In the present case, the mortgagor was called upon to pay both the Principal and
interest and therefore, it is clear that the mortgagee was exercising his power under Section
69 (2) (a) of the Transfer of Property Act, which reads thus :
No such power shall be exercised unless and until —
(a) notice in writing requiring payment of the principal money has been served on
the mortgagor, or on one of several mortgagors, and default has been made in
payment of the principal money, or of part thereof, for three months after such
service; or
(b) some interest under the mortgage amounting at least to five hundred rupees is in
arrear and unpaid for three months after becoming due.
Therefore, the judgment of the Mysore High Court does not come to the aid of the
appellant.
16. The learned counsel appearing for the respondents 6 and 7 submitted that the
Courts should notice the fact that the purchase at the Court auction was by the wife of the
assignee Dr.D.N.Bhat and that it was virtually a purchase by himself and this is frowned
upon by the Courts. The learned counsel also pointed out that the intervening assignment in
favour of V.S.Sambandha Mudaliar is only a ruse to facilitate the purchase of the property by
Dr.D.N.Bhat himself through his wife. Reliance was placed on Egmore Benefit Society v.
Aburupammal, 1943 (1) MLJ 92, where it was held that under Section 69 of Transfer of
Property Act “the mortgagee cannot purchase the property at the private sale, the
principle being that a man cannot contract with himself and this principle is not abrogated
merely because there is a contract between the mortgagor and the mortgagee that the latter
could purchase the mortgaged property at the auction.” The learned counsel for the appellant
had referred to the recitals in the original mortgage deed in favour of Alagamai Achi, where
the parties had agreed that the mortgagee, had the liberty to by any such sale. But, in view of
this decision, it is evident that to allow such a contract will to negate the provision based on
public policy.
17. In Vallabhdas v. Pranshankar, AIR 1929 Bom 24, it was held that when a
mortgagee puts up the mortgaged property for sale under a power given him by his mortgage
deed, he cannot sell it to himself, either alone or with others, nor a trustee for himself.
18. In Ashwin S.Mehta v. Custodian, (2006) 2 SCC 385, the Hon’ble Supreme Court
held in para 70 to show that it is only a bonafide purchaser, who is protected in such auction
sale. According to the respondents, the appellant, which is none other than the wife of the
previous assignee is not protected.
19. The learned counsel for the appellant referred to Trustees, Port of Madras v. Good
Year India, AIR 1973 Mad 316 and Ram Singh v. Khirodhan Devi, AIR 1983 Pat 151, to
show that new pleas cannot be entertained at the appellate stage, when there are no pleadings
in the written statement. To this, the learned senior counsel and the other learned counsel
appearing on behalf of the respondent would submit when the irregularity glares at the Court,
no further evidence is required and the facts speaks for themselves, it is open to the
parties to point out such vitiating factors to support their case.
20. A. Batcha Sahib v. Nariman K. Irani, AIR 1995 Mad 491, is the Judgment of the
Division Bench, which hold that even bona fide and substantial defence open to the
mortgagor regarding correctness of the amount or the prematurity of the sale are not available
under Section 69, which is a drastic provision and places bona fide mortgagors in a very
helpless possession. That judgment may help the appellant, if she had proved that there was a
sale on 05.05.1982. Since, that has not been proved, this Judgment does not help.
21. Ranganayakamma v. K.S.Prakash, AIR 2005 Karn 426, was relied to show that
mere use of words like fraud and collusion are not sufficient, necessary particulars should be
placed before the Court. To the same effect, Nasir-ud-din v. Ahmad Husain, AIR 1926 PC
109, K. Kanakarathnam v. A.Perumal, AIR 1994 Mad 247, Kansi Ram v. Jai Ram, AIR 1956
Him Pra. 4, was placed. This is not a case of fraud and collusion. The categoric case of the
appellant was that there was no sale on that date and the conduct of sale was not proved by
acceptable evidence. So, these decisions are not relevant.
22. The learned counsel for the respondents 6 and 7 referred to Jerup Teja & Co. v.
Peerbhoy, AIR 1921 Bom 421, to show that default in payment of interest for three months
would not amount to default of payment of mortgage money. This judgment is clearly
relevant in this case for the mortgagors have not paid any amount, but the appellant would
still not derive any benefit from the same, since the appellant had issued notice, calling upon
member to pay the principal and interest, as per Section 69 (2) (a) of the Transfer of Property
Act. But the notice in writing , which she is bound to issue to the mortgagors has not been
proved to have been sent to the mortgagors or received by them.
23. In Ramakrishna Mudali v. Official Assignee, Madras, AIR 1922 Mad 390 (2), the
Division Bench, considered the question whether the sale can be attacked on the ground that
notice was not given or the power of sale was improperly or irregularly exercised and the
Division Bench held that if there is improper or irregular exercise of power, the mortgagor
shall have his remedy only in damages. This again does not help the appellant, as she has
not proved that the sale had taken place. To the same effect, is Kundu v. Rookonand, AIR
1918 Lower Burma 64.
24. R.S. Nadar v. Indian Bank Ltd., Madras, AIR 1967 SC 1296, was relied on, where
the learned Judge has held as follows :
“3. The language of this sub-section is clear and unambiguous. The section lays
down in no uncertain terms that the requisite notice may be given to the mortgagor
or one of several mortgagors where there is a number of them, the obvious idea
being that the mortgagor who is given the notice is constituted the agent of a
mortgagor to get no notice under this Section, if he comes to learn that the
property has been sold without any notice to him.”
25. Satyapal v. Rukayyabai, AIR 1993 Bom 203, was relied on by the learned counsel
appearing for the respondents 2 and 3, where the learned Judge held that sale without
intervention of Court must be conducted bona fide and where the sale proclamation falsely
describes property; neither reserve price nor estimated price were mentioned, exact property
tax arrears were not mentioned instead language used giving erroneous impression that
property was seriously encumbered, rental income property yielded was not given and
property sold at less than 25% of its true value and on facts, it was held that mortgagee and
purchaser were acting in tandem and committed fraud in conducting sale. Auction sale was
declared void and not binding on plaintiff mortgagor. In the present case too, the trial Court
came to the conclusion that the property was sold at a very low value, market value was
higher. The appellant was aware of the same, since she had purchased stamp papers for a
value of Rs.1,30,000/-, though the property was assessed at Rs.1,46,000/- and her evidence
with regard to the manner, in which auction sale was conducted is extremely unsatisfactory.
Even the notice given by the auctioneers, Ex.A.12 does not help her case. Perhaps if the
appellant had taken the trouble to examine the auctioneers to show how many persons bid at
the auction and what were the bids, then this Court might have had some material in favour
of appellant.
26. Babamiya v. Jehangir, AIR 1941 Bom 339, was referred, to show that the notice
under Section 69 (2) (a) is not only necessary, but it is imperative and the advertisement of
sale of mortgage property in the newspaper is not a sufficient intimation to the mortgator.
27. P.L. Chakrapani Naidu v. Gopal Mudaliar, 1972 (II) MLJ 390, was strongly relied
on by the learned counsel for the appellant, to show that neither insufficiency of the principal
of the bidders, nor insufficiency of price could vitiate the sale. That case was some what the
similar to the present case. Suits were filed to prevent the auction, previous auctions were
obstructed and the Division Bench had observed that the mortgagee was not actually of any
fraudulent conduct and that if bidder offers were not forthcoming, it was because of the
obstructive tactics, pursued by the mortgagors and in that conduct, the Division Bench refer
to the English Decision to show when the mortgagee is not a trustee of the board of the sale
for the mortgagor, but in the same decision, the Division Bench held that the auctioneers
records, day books and ledgers were all filed and the Division Bench carefully perused the
same and arrived at the conclusion that there was an auction and there was evidence that at
the time of auction, there were 40 or 50 persons present and that nothing was done in secrecy.
No such evidence is available in the present case.
28. It is true that fraud and collusion cannot be proved, merely on the ground that the
mortgagee had managed to purchase the property in the name of his wife, there must be
convincing acceptable evidence. In this case, the pleadings on either side are far from
satisfactory. But however from the dates of the various documents marked in evidence, it is
seen that the husband of the appellant had obtained the assignment of the mortgagor on
23.11.1981 and within less than two months thereafter, the mortgage was assigned to
another person and within four months, the appellant purchased the property, at the so called
auction sale. Even on the date of auction, the property was worth Rs.1,30,000/-. There is no
evidence available to show whether the auctioneers fixed a reserve price, there is no evidence
to show how many bidders were there and there is nothing to show that there was a genuine
auction sale on 05.05.1982.
29. The appellant cannot succeed, on the ground that no notice is necessary, if interest
alone is due, for she came to Court, stating that notice had been issued, claiming the
principal and interest, which is as per Section 69 (2) (a) of the Transfer of Property Act, for
which notice is imperative. Even the paper publications effected do not inspire any
confidence to show that the auctioneers had any intention to give a wide publicity. There is
no evidence that there were many bidders, except the self serving evidence of P.W.1. Nor is
there evidence to show that the sale was indeed conducted bona fide. This section is a very
harsh section, and if it requires a notice in writing, then the least, that is required of the
mortgagor or the purchaser is to prove that the notice was given, especially when the
mortgagors have denied receipt. The materials on record hardly inspire any equitable
consideration in favour of the appellant. “ While dealing with the mode of exercise of power,
the mortgagee must exercise the power in a prudent way... He has his own interest to
consider, as well as that of the mortgagor and so long as he keeps within the term of the
power, exercises the power in good faith for the purpose of realising the security and takes
reasonable precautions to secure a proper price, the Court will not interfere. This duty to
obtain a proper price is owed also to subsequent mortgagees but not to a surety “ Halsbury’s
Laws of England IV Edition Mortgage P.726.
The following glaring infirmities attend the alleged auction sale:
(a) Notice is imperative, since the appellant’s case is that sale was under
Section 69 (2) (a), but there is no evidence of service of notice.
(b) No satisfactory evidence of sale.
(c) The particulars given in sale proclamation are inadequate.
(d) Purchase, though only by a prior mortgagee’s wife. The close proximity of
dates of transaction renders the purchase vulnerable to doubt.
(e) The purchase price is pitifully low.
(f) There is no proof that the mortgagee, who brought the property to sale was
discharged.
Therefore, there is no warrant for any interference in the appeal and the appeal is
dismissed with costs.
Appeal dismissed.

[2007 (2) TNCJ 41 (Mad)]

MADRAS HIGH COURT
BEFORE:
F.M. IBRAHIM KALIFULLA AND V. DHANPALAN, JJ
M. GNANASEKAR AND OTHERS ...Petitioners
 Versus
STATE OF TAMIL NADU AND OTHERS .Respondents
[W.P. Nos 36731 to 43626 of 2006 and M.P. Nos 1 and 2 of 2006 and 5 of 2007 in
W.P. No 36731 of 2006 and M.P. Nos 2 and 3 of 2006, in W.P. No 43626 of 2006, decided
on 11th June, 2007]
(A) Public Interest Litigation—In respect of service matters—Challenging the
Government order deciding to conduct a special Competitive Examination in Group IV
standard through T.N.P.S.C. to absorb temporary Assistants/ Junior Assistants in
Secretariat and various departments in the district who are on contract basis in the
Tamil Nadu Ministerial Services/Tamil Nadu Judicial Ministerial Services—Cannot
be entertained—P.I.L is not maintainable.
(Para 3 and 23)
(B) Tamil Nadu State and Subordinate Services Rules—Rule 11—Constitution of
India, 1950—Articles 14, 16 and 226—Special Competitive Examination—Decision to—
To absorb temporary Assistants/Junior Assistants in Secretariat and various
departments in the district who are on contract basis in the Tamil Nadu Ministerial
Service/ Tamil Nadu Judicial Ministerial Service—G.O. Ms Nos. 155 dated 19.9.2006—
Validity of—Attempt of the State Government in resorting to the holding of a special
Completive Examination for the temporary employees for filling up of the posts of 7,702
from amongst 11,356 persons is neither in violation of Articles 14 and 16 of the
Constitution nor of any statutory Rules or Regulations— Temporary employees
formed a class by themselves—Employment as temporary hand cannot be regarded as
either illegal or irregular in any respect. (Paras 38 to 49, 52 to
55)
(C) Constitution of India, 1950—Article 320(3)—Tamil Nadu State and
Subordinate Services Rules—Rule 48—Resort to a recruitment without consulting
the T.N.P.S.C at the time of exigencies—State Government empowered—Steps
taken of State Government as a policy decision considering the nature of
induction of the temporary employees at the time when their services were
imminently required to get over the crisis— Permissible in law.
(Paras 50 and 51)
Case law.—1998 (7) SCC 273; 2005 (1) SCC 590; 2003 (6) SCC 581; 2006(4) SCC 1;
1982 (3) SCC 341; 1984 (4) SCC 251; 1997 (10) SCC 298; 1997(2) SCC1; W.P. No 8490 of
1999 decided on 8.2.2007; 1990 (2) SCC 396; 1967(1) SCR 128; 1972(1) SCC 409; 1979 (4)
SCC 507; 1998(1) SCC 122; 1990 (1) SCC 361; 2004 (7) SCC 112.
Counsel.—Mr. Gnanasekar-Party-in person, for petitioner in W.P.No. 36731 of 2006;
Mr N. Subramaniyan, for petitioner in W.P. No. 43626 of 2006; Mr. M. Dhandapani, Spl.
G.P., for respondents 1 and 2 in W.P. No. 36731 of 2006 and respondent-1 in W.P. No.43626
of 2006; Mr. N.G.R. Prasad for M/s. Row & Reddy, for respondent-3 in W.P.No. 36731 of
2006 and respondent-2 in W.P.No. 43626 of 2006; MR. Ajay Ghose for Mr.
Hariparanthaman, for respondent-4 in W.P.No. 36731 of 2006 and respondent-3 in W.P.No.
43626 of 2006; Ms. Vaigai, for respondent-5 in W.P.No. 36731 of 2006 and respondent-4 in
W.P.No. 43626 of 2006; Mr. S. Ayyathurai, for respondents 6 to 11 in W.P.No. 36731 of
2006 and responents 5 to 10 in W.P.No. 43626 of 2006; Mr. A.R. Thiruneelakandan, for
respondent-12 in W.P.No. 36731 of 2006.
 JUDGMENT
F.M. IBRAHIM KALIFULLA, J.—In both these writ petitions, the challenge is to
G.O.Ms.No.155, Personnel and Administrative Reforms (P) Department, dated 19.9.2006,
passed by the State of Tamil Nadu. By the impugned G.O., the State Government has decided
to conduct a Special Competitive Examination in Group-IV standard through the Tamil Nadu
Public Service Commission (hereinafter referred to as ‘the TNPSC’) so as to absorb
temporary Assistants/Junior Assistants in Secretariat and various departments in the
districts who are on contract basis in the Tamil Nadu Ministerial Service/Tamil Nadu Judicial
Ministerial Service. In the light of the said decision, the State Government requested the
TNPSC to conduct necessary Special Competitive Examination in Group-IV for those
persons.
2. W.P.No.36731 of 2006 has been filed as a Public Interest Litigation (hereinafter
referred to as ‘the PIL’) by an individual who is a member of the Bar, while W.P.No.43626
of 2006 has been filed by four unemployed graduates who while seeking for quashing of the
impugned G.O., also seek for a consequential direction to the State Government to fill up all
the vacancies accrued in all the posts under the State or other authorities including the
vacancies occupied by the temporary appointees by regular appointment through the TNPSC
or any other recruiting agency by conducting an open competition giving equal opportunities
to all the qualified citizens. Though the said W.P.No.43626 of 2006 was filed by those four
individuals independently, since the former case (W.P.No.36731 of 2006) was
entertained as a PIL, W.P.No.43626 of 2006 was tagged on and posted together for disposal.
3. At the outset, we wish to state that the writ petition preferred by the petitioner
in W.P.No.36731 of 2006 cannot be entertained, inasmuch as it is by now well settled
that a PIL cannot be entertained in respect of service matters, as has been categorically held
by the Supreme Court in the decisions reported in 1998 (7) SCC 273 (Dr.Duryodhan Sahu v.
Jitendra Kumar Mishra) and 2005 (1) SCC 590 (Dattaraj Nathuji Thaware v. State of
Maharashtra). The Supreme Court in the latter decision (2005 (1) SCC 590) has stated the
legal position as under in paragraph 16:
“16. Though the parameters of public interest litigation have been indicated by this
Court in a large number of cases, yet unmindful of the real intentions and
objectives, the Courts are entertaining such petitions and wasting valuable
judicial time which, as noted above, could be otherwise utilised for disposal of
genuine cases. Though in Duryodhan Sahu (Dr.) v. Jitendra Kumar Mishra (1998
(7) SCC 273 : 1998 SCC (L & S) 1802 : AIR 1999 SC 114) this Court held that in
service matters, PILs should not be entertained, the inflow of so-called PILs
involving service matters continues unabated in the courts and strangely are
entertained. The least the High Courts could do is to throw them out on the basis of
the said decision.”
Again in paragraph 20 in 2005 (1) SCC 590, the Supreme Court has expressed its
displeasure in the members of the Bar in either aiding or abetting filing of the frivolous
petitions carrying the attractive brand-name of “Public Interest Litigation”.
4. In the light of the said categoric pronouncement of the Supreme Court, it will
have to be held that W.P.No.36731 of 2006 cannot be entertained at all as a PIL challenging
the impugned Government Order. Since the other writ petition in W.P.No.43626 of 2006
preferred by unemployed graduates challenging the very same G.O. was tagged along with
W.P.No.36731 of 2006, we decided to examine the correctness of the impugned G.O. and
heard the learned counsel appearing for the parties.
5. The brief facts which are required to be stated are that on 1.7.2003, the Government
servants working in the Secretariat as well as in the District Administration went on a strike
en-masse. The State Government, therefore, passed orders dismissing the striking employees.
Closely followed by that, the Government issued G.O.Ms.No.84, Personnel and
Administrative Reforms (Per.G) Department, dated 4.7.2003 and decided to recruit
temporary Assistants to attend to the work in the departments of the Secretariat.
Similarly, by G.O.Ms.No.85, Personnel and Administrative Reforms (Per.G) Department,
dated 4.7.2003, the Government decided to recruit temporary Junior Assistants in various
districts. In the said G.O.Ms.No.84, the Commissioner of Employment and Training, Chennai
was asked to send a list of eligible candidates to fill up 1000 supernumerary posts and ensure
that the candidates are selected and put in position by 7.7.2003 insofar as the State Secretariat
was concerned. In the G.O.Ms.No.85, similar such direction was issued to give suitable
instructions to all the District Employment Exchanges to send a list of eligible candidates
possessing necessary qualification by creating 500 temporary supernumerary posts of
Junior Assistants in each District in order to ensure that such candidates are employed on a
temporary basis and put in position from 7.7.2003 onwards.
6. Subsequently, the issue relating to the dismissal of the striking employees came
to be considered by the Supreme Court in Civil Appeal Nos.5556 of 2006, etc., dated
6.8.2003 [reported in 2003 (6) SCC 581, T.K.Rangarajan v. Govt. of T.N]. In the said civil
appeal, learned counsel appearing for the State after getting necessary instructions, stated
before the Court that the State Government came forward to reinstate all the Government
employees who were dismissed because they had gone on strike except 2,200 employees
who had been arrested and the employees against whom F.I.R. had been lodged.
Subsequently, all the Government services were reinstated in service.
7. Thereafter, in G.O.Ms.No.425, Personnel and Administrative Reforms (G)
Department, dated 4.12.2003, 506 temporary Assistants appointed on contract basis
pursuant to G.O.Ms.No.84, dated 4.7.2003, were transferred to work as Supervisors
(Graduates) in retail outlets of TASMAC at Chennai. Thereafter, by G.O.Ms.No.263,
Personnel and Administrative Reforms (G) Department, dated 21.6.2004, the State
Government passed orders terminating all the Junior Assistants appointed on contract
basis in the districts with immediate effect. However, by subsequent G.O. in
G.O.Ms.NO.290, Personnel and Administrative Reforms (G) Department, dated 23.6.2004,
the earlier Government Order in G.O.Ms.No.263, dated 21.6.2004, was cancelled.
8. It is in the above said background, the present impugned G.O.Ms.No.155, dated
19.9.2006 came to be issued, wherein, the State Government has decided to conduct a Special
Competitive Examination in Group IV Standard for those temporarily recruited Assistants in
the Secretariat and Junior Assistants in the various districts in supernumerary posts for the
purpose of their absorption in service. Similarly, in G.O.Ms.No.163, Personnel and
Administrative Reforms (P) Department, dated 22.9.2006, the temporary employees who
were transferred to TASMAC were also permitted to appear for the Special Competitive
Examination to be conducted by the TNPSC. It is stated that the total number of posts in
Group ‘C’ as on date is 7,702, while the total number of temporary employees who came to
be appointed pursuant to G.O.Ms.Nos.84 and 85, dated 4.7.2003, is 11,356.
9. The contentions raised on behalf of the petitioners are that the posts of Junior
Assistant/Assistant are Group ‘C’ posts, which are governed by the Rules framed under
Article 309 of the Constitution and the State Government cannot attempt to restrict the scope
of selection to a few selected individuals, as that would be violative of Articles 14 and 16 of
the Constitution. By referring to Rule 11(2) of the Tamil Nadu State and Subordinate
Services Rules, it was contended that those temporary employees who came to be
appointed under the said Rule, cannot be given any preferential treatment, inasmuch as the
said Rule would act as a statutory bar.
10. It was also contended that since the selection of the temporary employees pursuant
to G.O.Ms.Nos.84 and 85, dated 4.7.2003, came to be made within a short span of three or
four days’ time, there would not have been a proper selection and the chance was not thrown
open to all the available eligible candidates while making such appointment. It was,
therefore, contended that the present attempt to restrict the scope of selection from among
those temporary employees alone would deprive all the valuable rights of the
petitioners in W.P.No.43636 of 2006 and similar such eligible candidates who aspire for
such service in the State.
11. Heavy reliance was placed upon the Constitution Bench decision of the Supreme
Court reported in 2006 (4) SCC 1 [Secy. State of Karnataka v. Umadevi (3)] to contend that
the Supreme Court has deprecated the practice of regularisation of illegal appointment to the
State service.
12. It was also contended that by virtue of Article 320 (3) of the Constitution, since it
is within the realm of the State Public Service Commission as regards the matters relating to
the services of the State, there is a Constitutional bar for the State Government to resort to
such restricted recruitment.
13. By referring to Article 13 (2) of the Constitution, it was contended that any law
made by the State Government which either takes away or abridges the rights conferred
under Part-III of the Constitution, should be held to be void to the extent of such
contravention. It was also contended that while resorting to such restricted recruitment, the
rule of reservation is also not followed.
14. As against the above submissions, Mr.N.G.R.Prasad, Ms. Vaigai, Mr. Ajay Ghose
for Mr. Hariparanthaman, Mr. Thiruneelakandan and Mr.Ayyathurai, learned counsel
appearing for the respective contesting respondents, namely the various Associations
representing the temporary employees, contended that even as per the Supreme Court in
Umadevi’s case (2006 (4) SCC 1), what is deprecated is only regularisation of illegal
appointment and that the said decision will have no application to the case on hand as the
appointments were made in accordance with the Rules governing the services of the Tamil
Nadu State and Subordinate employees.
15. Ms.Vaigai, learned counsel in her submissions stated that the controversy raised in
these writ petitions would centre around the question as to whether the Government’s action
can be held to be in accordance with the Rules and whether such action can be held to be
constitutionally valid. By referring to Rules 2 (14), 2 (15) and 2 (18), 11 and 48 of the Tamil
Nadu State and Subordinate Services Rules, it was contended that in the present case, the
appointment of temporary employees at the initial stage was made in accordance with those
Rules, that those Rules provide for resorting to a restricted selection to be made through the
State Public Service Commission and that such action of the Government in treating the
employees as a class by themselves for whom such restricted scope of selection, was
permissible under law. Learned counsel, therefore, contended that when the initial
appointment of the temporary employees was based on the assessment of factors that
prevailed in an extraordinary situation which forced the State Government to resort to such
appointment to ensure that the Government machinery function without any interruption, no
fault can be found with the issuance of the impugned G.O.Ms.No.155, dated 19.9.2006 and
G.O.Ms.No.163, dated 22.9.2006, for holding a Special Competitive Examination in order to
absorb such of those temporary employees as Assistants/Junior Assistants in the regular
service.
16. Reliance was also placed on the proviso to Article 320 (3) of the Constitution
which empowered the State Government to deviate from the normal rule of consulting the
Public Service Commission while resorting to such selection. Learned counsel also referred
to the TNPSC Regulations, in particular, Regulation 16 (b), which again enables the State
Government to resort to any recruitment without consulting the State Service Commission.
17. Learned counsel also relied upon the decisions of the Supreme Court reported in
1982 (3) SCC 341 (I. J. Divakar v. Govt. of A.P) and 1984 (4) SCC 251 (Prabodh Verma v.
State of U.P) and contended that in the light of the above referred to decisions of the Supreme
Court which has recognised the power of the State Government to regularise the services of
such employees who form a class by themselves, it would fall within the exceptional
categories set out in the recent Constitution Bench decision of the Supreme Court reported
in 2006 (4) SCC 1 (Umadevi’s case). According to the learned counsel, the effect of law
stated by the Supreme Court in paragraph 54 of Umadevi’s case will not apply to the said
earlier decisions of the Supreme Court reported in 1982 (3) SCC 341 and 1984 (4) SCC 251.
Reliance was also placed upon the decision of the Supreme Court reported in 1997 (10) SCC
298 (Sandeep Kumar Sharma v. State of Punjab). Learned counsel therefore contended that
since the State Government has necessary powers for ordering a Special Competitive
Examination for the temporary employees under the Rules, there is no scope to hold that
there is any violation of Article 14 or Article 16 of the Constitution.
18. Mr. Ajay Ghose, learned counsel representing learned counsel Mr.
Hariparanthaman, by relying upon paragraph 31 of the Umadevi’s case (2006 (4) SCC 1),
where the earlier decision of the Supreme Court reported in 1997 (2) SCC 1 (Ashwani Kumar
v. State of Bihar) has been referred to, contended that since the initial entry of the temporary
employees did not suffer from any flaw in the procedural exercise, the subsequent
regularisation by resorting to a Special Competitive Examination through the State Public
Service Commission cannot be found fault with. Reliance was also placed upon the
unreported order of a Division Bench of this Court in W.P.No.8490 of 1999, dated 8.2.2007.
19. Mr.Ayyathurai, learned counsel appearing for certain other contesting respondents,
contended that there was no unfairness pointed out by the petitioners in order to countenance
their challenge. Learned counsel referred to Rule 5 of the TNPSC Rules of Procedure
and contended that the TNPSC itself has been empowered to adopt a special procedure in
any particular case or class of cases to deviate from the normal rule. According to the
learned counsel, the temporary employees formed a class by themselves and therefore,
such a procedure which is now sought to be adopted by the State Government, is perfectly
valid.
20. Mr.Thiruneelakandan, learned counsel appearing for the other contesting
respondent, contended that the temporary employees were all qualified persons, that the
recruitment was based on the seniority maintained in the Employment Exchange, that since
there was a ban on recruitment earlier, there were large number of vacancies at the point of
time when the temporary employees were recruited and their long standing grievance for
absorption which is now being effected by resorting to a Special Competitive Examination,
that too, through the TNPSC, cannot be faulted.
 21. Mr.M.Dhandapani, learned Special Government Pleader appearing on behalf of the
State, submitted that the temporary employees were appointed by invoking Rule 11 of the
Tamil Nadu State and Subordinate Services Rules, that they were not in the services of the
State, that for them, the Special Rules providing for the method of recruitment will have no
application and that in the light of Rule 48 of the Tamil Nadu State and Subordinate Services
Rules, as well as proviso to Article 320(3) of the Constitution, read along with the TNPSC
Regulations and the TNPSC Rules of Procedure, the recruitment by way of Special
Competitive Examination to be conducted by the TNPSC is resorted to as per the Rules, and
therefore, such recruitment for the purpose of absorption of such of those successful
temporary employees, cannot be held to be illegal. The learned Special Government Pleader,
by referring to the counter affidavit filed on behalf of the State, pointed out that there are
11,356 contract employees who are working temporarily on a consolidated pay of Rs.4,000/-
p.m., that they came to be appointed at a time when the State Government faced a crisis due
to the en-masse strike of the State Government employees and therefore, the State
Government thought it fit to treat them as a class by themselves by resorting to a special
recruitment under the impugned G.O.
22. The learned Special Government Pleader also submitted that such special
recruitment is not uncommon, that earlier in the year 1977, 1984, 1989 and 1997, such
recruitment was made for regularisation of similar such employees employed on consolidated
pay by holding Special Qualifying Examination. The learned Special Government Pleader
contended that what is prohibited in the Constitution Bench judgment of the Supreme
Court in Umadevi’s case (2006 (4) SCC 1), is only illegal appointment, namely employees
who enter the service through back-door entry, whose employment cannot be regularised by
way of absorption and since the employment of the temporary employees in the
present case was in accordance with the Rules, and when the State Government, as a policy
decision, in the interest of the administration as well as in the interest of such temporary
employees, decided to resort to recruitment by way of Special Competitive Examination
through the TNPSC, the said action of the State Government should not be interfered with.
23. Having heard learned counsel for the petitioners, learned Special Government
Pleader and the learned counsel for the contesting respondents, at the outset, we hold
that the writ petition in W.P.No.36731 of 2006 by way of a PIL, is not maintainable in law,
as the same is directly hit by the decisions of the Supreme Court reported in 1998 (7) SCC
273 (cited supra) and 2005 (1) SCC 590 (cited supra). We would have been well justified in
imposing exemplary costs on the petitioner in W.P.No.36731 of 2006, but for the fact
that in the connected writ petition in W.P.No.43636 of 2006 preferred by the aggrieved
unemployed graduates, we thought it fit to examine the challenge made to the impugned G.O.
in the light of the decision of the Supreme Court in Umadevi’s case (2006 (4) SCC 1) and the
earlier decisions of the Supreme Court reported in 1982 (3) SCC 341 (cited supra) and 1984
(4) SCC 251 (cited supra). Therefore, we merely hold that the said Writ Petition in
W.P.No.36731 of 2006 is liable to be dismissed in-limine.
24. When we consider the issue involved as raised in the challenge made to the
impugned G.O. in W.P.No.43626 of 2006, we wish to refer to the ratio decided in Umadevi’s
case (2006 (4) SCC 1) as well as the earlier decisions of the Supreme Court reported in 1982
(3) SCC 341 (Divakar’s case) and 1984 (4) SCC 251 (Prabodh Verma’s case). We find that
the statement of law set out in the earlier two decisions (Divakar and Prabodh Verma cases)
required to be stated for more than one reason. In the first instance, these two earlier
decisions were not brought to the notice of the Supreme Court in Umadevi’s case. We are of
the considered opinion that the ratio-decidendi in the above referred to earlier decisions carve
out an exception, which exception has been broadly set out in Umadevi’s case and
therefore, it will be worthwhile to refer to those decisions in the foremost before ever our
conclusions are set forth in the case on hand.
25. The facts involved in Divakar’s case (1982 (3) SCC 341) briefly stated are that the
Andhra Pradesh Public Service Commission invited applications for the post of Junior
Engineers in the Andhra Pradesh Engineering Service and other allied services in the year
1977. As many as 4,000 applications were received and all eligible candidates were asked
to appear for a viva-voce test and after the conclusion of the viva-voce test, the State
Commission was in the process of finalising the select list. At that point of time, the
Government of Andhra Pradesh issued two Government Orders in exercise of powers vested
with it under Article 320 of the Constitution, by which it excluded from the purview of the
Commission all appointments made by direct recruitment to any post in any category at all
levels in the State and Subordinate Services, which were continuing temporarily as on
particular date. By the second G.O., the State Government regularised the services of all
temporary Government servants who were appointed by direct recruitment and who were
continuing in service as on the date of the issuance of the Government Order without
subjecting to any test, written or oral, subject of course to certain conditions to be specified as
per the G.O. The Supreme Court certified that such a power of the State Government did
flow from the proviso to Clause 3 of Article 320 of the Constitution. The contention raised
while attacking the G.Os. issued by the State Government, namely that advertisement was
already made by the Commission and that it was in the process of selection and therefore, at
that stage, the power under the proviso to Clause 3 of Article 320 cannot be issued, was
negative by the Supreme Court. As far as the contention, namely that the recruitment of the
temporary employees for the post of Junior Engineers was within the powers of the State
Commission and therefore, such initial recruitment as on a temporary basis itself was
contrary to the statutory provision in order to hold that the subsequent absorption was not
legal, the Supreme Court went on to hold that the power of the State Government for making
temporary appointments without the intervention of the Commission, cannot be disputed,
and that such temporary employees did possess necessary qualification, and therefore,
when the Government thought it fit in the light of the exigencies to regularise their services
for peace and harmony in services, such regularisation has to be held to be in accordance
with the Rules.
26. In Prabodh Verma’s case (1984 (4) SCC 251), we find that the facts are more or
less identical to the one involved in the case on hand. That was a case which arose in the
State of Uttar Pradesh. In the year 1977, out of 80,000 Selection Grade Teachers of
recognised institutions and institutions manned by the local bodies, 60,000 of them were
members of a particular Sangh. 90% of the teachers in the recognised institutions went on an
indefinite strike from 2.12.1977. In the light of the fact that the service in an educational
institution had been defined as “essential service” under the Uttar Pradesh Essential Services
Maintenance Act, the State Government issued a notification under Section 3 (1) of that Act
prohibiting the strikes in service in educational institutions by way of an Ordinance, while
simultaneously by way of an amendment to Section 4 of the said Act, the State Government
was empowered to terminate the services of such teachers if they fail to resume duty and
also to make appointments on temporary basis of any person possessing the requisite
qualifications for discharging their duties for the purpose of any such teacher. The writ
petitions came to be filed by the striking teachers and in that process, 2,257 teaching
posts came to be filled up by resorting to temporary appointments, by appointing persons
who possess the requisite qualifications. Subsequently, after a settlement was reached with
the permanent teachers, the temporary appointees numbering 2,257, were terminated.
Subsequently, by way of an Ordinance to provide for absorption of certain teachers in the
institutions recognised under the Education Act, such displaced temporary teachers were
preferentially to be appointed in the substantive vacancies. When such substantive
vacancies were filled up from among the reserve pool of erstwhile temporary appointees,
some of the applicants who were not in the reserve pool, challenged their selection. In fact,
the subsequent Ordinance providing for filling up of substantive vacancies from among
the reserve pool created by the erstwhile temporary appointees, also made it lawful for the
State Government to prohibit by notification in the Official Gazette the selection or
appointment of any teacher in a recognised institution until the list of reserve pool of teachers
of that district was exhausted and it further provided that where the Management failed to
offer any post to a teacher in the reserve pool in accordance with the provisions of the
Ordinance within the time specified by the Inspector, the Inspector could himself issue a
letter of appointment to such teacher and the teacher concerned was entitled to get the salary
from the date of such appointment. The challenge was made to the Ordinance itself by the
Sangh representing the regular teachers who were in service. The High Court held that
the Ordinance was constitutionally invalid and also proceeded to quash the subsequent
proceedings to make the appointments from the reserve pool of teachers. In fact, in the
proceedings filed before the High Court at Allahabad, none of the reserve pool teachers either
individually or in a representative capacity were impleaded as party-respondents. The
Supreme Court entertained the special leave petitions preferred by the reserve pool teachers
whose Writ Petitions were also dismissed by the High Court. The Supreme Court before
going into the merits of the issues involved, at the outset, held that the Writ petition filed by
the Sangh representing the permanent teachers suffered from two serious defects, namely
the non-joinder of necessary parties who were vitally concerned, namely the reserve pool
teachers who were not even made parties in a representative capacity considering that their
number was too large and that the writ of certiorari to quash the Ordinance was not
maintainable. On the first defect pointed out, the Supreme Court in its ultimate
conclusion, emphasised that for non-joinder of necessary parties, the writ petition was liable
to be dismissed. As regards the merits, the Supreme Court held that reserve pool teachers
formed a separate and distinct class from other applicants from the post of teachers in
recognised institutions for certain stated reasons and that the preferential treatment in the
matter of recruitment was not discriminatory offending Article 14 of the Constitution and
since the reserve pool teachers and the general applicants were not similarly
circumstanced, there is no question of equality of opportunity in matters relating to
employment guaranteed under Article 16(1) of the Constitution. Ultimately, the Supreme
Court set aside the termination of services of reserve pool teachers as directed by the
High Court and directed the State Government to restore their appointments.
27. Both in Divakar’s case as well as in Prabodh Verma’s case, the Supreme Court has
noted that persons came to be employed de-hors the normal rule of recruitment while such
employment was also resorted to, to meet certain emergent exigencies by following the
relevant Rule for making such temporary appointments or by passing necessary
amendments to the statute in order to ensure that such temporary appointments are legally
sustainable. Therefore, the Supreme Court was pleased to assert that such valid temporary
appointees cannot be thrown overboard on the specious ground that such temporary
appointments came to be made de-hors the normal rule of recruitment. In other words, the
Supreme Court made it clear that though at the time of making such temporary appointments,
the normal rule of recruitment was not followed, none the less, such appointments were
lawful and valid. In the light of the said conclusion as regards such temporary
appointees, the Supreme Court went on to hold that their ultimate regularisation or absorption
after a period of time by the State Government cannot be faulted.
28. In the light of the above ruling of the Supreme Court, when Umadevi’s case is
examined, the facts involved therein disclose that in one set of cases, there was a direction by
the Division Bench of the High Court to the State Government to consider regularisation of
temporary employees who had worked for more than ten years and also holding that they are
entitled for ‘equal pay for equal work’ from the very inception of their engagement on daily
wages. In another set of cases, the order of the State Government directing cancellation of
appointments of all casual workers/daily rated workers made after 1.7.1984, which was
under challenge before the High Court and while challenging the cancellation of
appointments, direction was also sought for their regularisation. While the learned single
Judge granted permission to the petitioners before him to approach their employers for
absorption and regularisation and also for payment of their salaries on par with the regular
workers by fixing time limit for making necessary representation, while directing the
employers to consider such representations in accordance with the observations of the
Supreme Court in similar cases. On appeal by the State Government, the Division Bench of
the High Court allowed the appeals holding that such employees were not entitled for the
benefit of the scheme of absorption framed by the Supreme Court in the decision reported in
1990 (2) SCC 396 (Dharwad District PWD Literate Daily Wage Employees Assn. v. State of
Karnataka). While considering the above issues, the Constitution Bench of the Supreme
Court at the threshold kept in mind the distinction between the regularisation and conferment
of permanence in service jurisprudence. It made a specific reference to two earlier cases of
the Supreme Court in State of Mysore v. S.V.Narayanappa (1967 (1) SCR 128) and
R.N.Nanjundappa v. Thimmiah (1972 (1) SCC 409), where the question of regularisation
came up for discussion. The Supreme Court was pleased to extract the law stated in the case
of Nanjundappa as stated in paragraph 26, which is to the following effect:
“Counsel on behalf of the respondent contended that regularisation would mean
conferring the quality of permanence on the appointment whereas counsel on
behalf of the State contended that regularisation did not mean permanence but
that it was a case of regularisation of the rules under Article 309. Both the
contentions are fallacious. If the appointment itself is in infraction of the rules or if
it is in violation of the provisions of the Constitution illegality cannot be
regularised. Ratification or regularisation is possible of an act which is within
the power and province of the authority but there has been some non-compliance
with procedure or manner which does not go to the root of the appointment.
Regularisation cannot be said to be a mode of recruitment. To accede to such a
proposition would be to introduce a new head of appointment in defiance of rules
or it may have the effect of setting at naught the rules.”
(underlining is ours)
29. After making a specific reference to the above extract of the earlier decision of the
Supreme Court, the Constitution Bench went on to state in paragraph 16 to the effect that in
B.N. Nagarajana v. State of Karnataka, 1979 (4) SCC 507, the Supreme Court has already
held in clear terms that the words “regular” or “regularisation” do not connote permanence
and cannot be construed so as to convey an idea of the nature of tenure of appointments and
stated that they are terms calculated to condone any procedural irregularities and are meant to
cure only such defects as are attributable to methodology followed in making the
appointments. The Constitution Bench also stated that those decisions and the principles
recognised therein were never dissented to by the Supreme Court and that on principle, the
Constitution Bench also expressed that they see no reason not to accept the proposition as
enunciated in the said decisions. Ultimately, the Constitution Bench of the Supreme Court
stated the legal position to the following effect in paragraph 16:
“16. ……We have, therefore, to keep this distinction in mind and proceed on the
basis that only something that is irregular for want of compliance with one of
the elements in the process of selection which does not go to the root of the
process, can be regularised and that it alone can be regularised and granting
permanence of employment is a totally different concept and cannot be equated
with regularisation.”
30. The Constitution Bench also held that the constitutional scheme of public
employment in this country vis-a-vis the right to regularise an appointment after following
the due procedure, even though a non-functional element of that process or procedure has not
been followed, is vested with the Executive and for that matter, with the Court in appropriate
cases.
31. After considering the above basic principles which are to be kept in mind while
considering any case of temporary employees/daily wage employees for regularisation, the
Constitution Bench of the Supreme Court opined that in the decision reported in 1988 (1)
SCC 122 (Daily Rated Casual Labour v. Union of India), the Supreme Court itself directed
the Government to frame a scheme for absorption of daily rated casual labourers who were
continuously working in the Posts and Telegraphs Department for more than one year. The
Constitution Bench of the Supreme Court also stated that similar approach was made in the
decision reported in 1990 (1) SCC 361 (Bhagwati Prasad v. Delhi State Mineral
Development Corpn.), where also, the Supreme Court directed regularisation of daily rated
workers in phases and in accordance with seniority.
32. While commenting upon the decision in Dharwad District P.W.D. Literate Daily
Wage Employees Association case, 1990 (2) SCC 396, the Constitution Bench of the
Supreme Court stated that the distinction emphasised in Nanjundappa’s case, 1972 (1) SCC
409, was omitted to be kept in mind, instead, while dealing with a scheme for “equal pay for
equal work” without an actual discussion of the question, the Supreme Court approved the
scheme prepared by the State at the direction of the Court to order permanent absorption of
daily rated workers. By saying so, the Constitution Bench of the Supreme Court held that the
decision in Dharward District PWD Literate Daily Wage Employees Association case, cannot
be said to have laid down any law. The Constitution Bench of the Supreme Court has stated
the same as under in paragraph 22:
“22. With respect to the learned Judges, the decision cannot be said to lay down
any law, that all those engaged on daily wages, casually, temporarily, or when no
sanctioned post or vacancy existed and without following the rules of selection,
should be absorbed or made permanent though not at a stretch, but gradually. If
that were the ratio, with respect, we have to disagree with it.”
33. While referring to the subsequent decision of the Supreme Court reported in 2004
(7) SCC 112 (A. Umarani v. Registrar, Co-op. Societies), the Constitution Bench of the
Supreme Court noted that in the said decision, the Supreme Court, after making a survey of
the authorities, held that when appointments were made in contravention of mandatory
provisions of the Act and statutory rules framed thereunder and by ignoring essential
qualifications, the appointments would be illegal and cannot be regularised by the State, even
by invoking Article 162 of the Constitution. In the opinion of the Supreme Court,
regularisation cannot be a mode of recruitment by any State falling under Article 12 of the
Constitution. The Constitution Bench re-emphasised the legal position in paragraph 43 in the
following words:
“43. Therefore, consistent with the scheme for public employment, this Court
while laying down the law, has necessarily to hold that unless the appointment is
in terms of the relevant rules and after a proper competition among qualified
persons, the same would not confer any right on the appointee. If it is a contractual
appointment, the appointment comes to an end at the end of the contract, if it
were an engagement or appointment on daily wages or casual basis, the same
would come to an end when it is discontinued. Similarly, a temporary employee
could not claim to be made permanent on the expiry of his term of appointment. It
has also to be clarified that merely because a temporary employee or a casual wage
worker is continued for a time beyond the term of his appointment, he would not
be entitled to be absorbed in regular service or made permanent, merely on the
strength of such continuance, if the original appointment was not made by
following a due process of selection as envisaged by the relevant rules.”
34. Again in paragraph 49, the Constitution Bench of the Supreme Court has
declared that when the Court is approached for relief by way of a writ, the Court has
necessarily to ask itself whether the person before it had any legal right to be enforced.
Ultimately, the Constitution Bench of the Supreme Court also made a clarification as under
in paragraph 53:
“53. One aspect needs to be clarified. There may be cases where irregular
appointments (not illegal appointments) as explained in S.V. Narayanappa [State of
Mysore v. S.V.Narayanappa, 1967 (1) SCR 128 : AIR 1967 SC 1071],
R.N.Nanjundappa [R.N.Nanjunappa v. T.Thimmiah, 1972 (1) SCC 409 : 1972 (2)
SCR 799] and B.N.Nagarajan [B.N.Nagarajan v. State of Karnataka, 1979 (4)
SCC 507 : 1980 SCC (L&S) 4 : 1979 (3) SCR 937] and referred to in para 15
above, of duly qualified persons in duly sanctioned vacant posts might have been
made and the employees have continued to work for ten years or more but without
the intervention of orders of the Courts or of tribunals. The question of
regularisation of the services of such employees may have to be considered on
merits in the light of the principles settled by this Court in the cases above
referred to and in the light of this judgment. In that context, the Union of India, the
State Governments and their instrumentalities should take steps to regularise as a
one-time measure, the services of such irregularly appointed, who have worked for
ten years or more in duly sanctioned posts but not under cover of orders of the
courts or of tribunals and should further ensure that regular recruitments are
undertaken to fill those vacant sanctioned posts that require to be filled up, in cases
where temporary employees or daily wagers are being now employed. The process
must be set in motion within six months from this date. We also clarify that
regularisation, if any already made, but not sub judice, need not be reopened based
on this judgment, but there should be no further bypassing of the constitutional
requirement and regularising or making permanent, those not duly appointed as per
the constitutional scheme.”
 35. Thereafter, in paragraph 54, the Constitution Bench further clarified as to the
earlier decisions, in the following words:
“54. It is also clarified that those decisions which run counter to the principle
settled in this decision, or in which directions running counter to what we
have held herein, will stand denuded of their status as precedents.”
36. It is in the light of the above stated legal position set down by the Constitution
Bench of the Supreme Court, the case on hand will have to be analysed. While making such
an analysis, we find that in G.O.Ms.Nos.84 and 85, while resorting to employment of
temporary hands to an extent of 500 persons in every District and 1,000 persons in the State
Secretariat, the State created such required number of supernumerary posts of Junior
Assistants in the District level and the post of Assistants at the Secretariat. The State also
issued specific direction to the Commissioner of Employment and Training to give suitable
instructions to the Employment Exchanges to send a list of eligible candidates possessing
minimum general educational qualifications who have registered in the respective
Employment Exchanges. The rule of reservation was directed to be followed, as stated under
General Rule 22 of the Tamil Nadu State and Subordinate Services Rules. Thereafter, the
District Collectors were directed to give wide publicity intimating the employment
registration numbers of such candidates, the date and venue of interview and other details
through the Press Media and other communication channels. As the necessity for such
temporary employment was under an imminent emergent situation, the District
Collectors were also directed to ensure that the candidates selected are put in position from
7.7.2003 onwards. Necessary advertisements were also made in the daily newspapers.
Necessary intimation letters to the selected candidates were also issued and one such letter
placed before the Court discloses that such a communication was sent even on 22.8.2003. A
contract reflecting the terms of such temporary appointment, got signed by the concerned
employee, which of course mentioned that no preferential claim to any other post or any
other service in the Government would be entertained. Such appointments on temporary basis
was allowed to continue even after the strike was withdrawn by the regular employees and all
of them resumed their duties at the intervention of the Supreme Court. Though by
G.O.Ms.No.263, dated 21.6.2004, the State Government wanted to terminate the services of
the temporary appointees, by yet another G.O. in G.O.Ms.No.290, dated 23.6.2004, the
earlier G.O.Ms.No.263, dated 21.6.2004 was cancelled. Thus, the temporary employees who
came to be appointed right from July 2003 were continued in service in supernumerary
posts and are working as such till this date.
37. It is also to be kept in mind that their services came to be availed when the State
machinery was facing a piquant situation in which the entire State Government employees
had withdrawn their services by resorting to an indefinite strike by pressing for
acceptance of their charter of demands. The State Government’s persuasion for withdrawal
of the strike and restoration of working, was not heeded to by the employees. Therefore, in
order to avoid paralyse of work of the entire State machinery, the State Government resorted
to engagement of temporary hands on an emergent basis. It will have to be stated that those
temporary employees who came forward to accept such engagement, did face enormous risk,
as they had to earn the wrath of the striking Government employees. Further, the engagement
of such temporary hands had to be made on a war-footing, as the State Government cannot be
expected to apply the regular recruitment process by giving usual time gap while making
such appointments. The appointments were all made by invoking Rule 11 of the Tamil
Nadu State and Subordinate Services Rules.
38. All the above factors disclose that the employment of temporary appointees
was validly made by following the relevant Rules and Regulations. The present set of
employment of temporary hands cannot be equated with unmindful engagement of casuals or
daily wagers at the whims and fancies of different authorities at different points of time.
When such is the nature of induction of these temporary employees to man an emergent
situation which prevailed in June-July, 2003 (i.e.) at the time when the State Government was
forced to resort to such temporary hands in order to ensure that the State machinery in its
functions, did not fail, it will have to be held that such temporary employees are a class by
themselves and the treatment of such employees of their future continuance as is now being
resorted to by the impugned G.O., has to be examined differently.
39. In our opinion, the facts involved in the case on hand fits in to a very large extent
to the facts involved in Prabodh Verma’s case, 1984 (4) SCC 251. As compared to the
reserve pool teachers numbering 2,257 in the Prabodh Verma’s case, in the case on hand, the
temporary employees are in the order of 11,356. While in the case on hand, the respondent-
State has now attempted for absorption by resorting to a Special Competitive Examination
through the TNPSC, in Prabodh Verma’s case, an Ordinance was passed to provide for
absorption by creating a reserve pool of such temporarily employed teachers numbering
2,257. The Supreme Court in Prabodh Verma’s case, noted that the reserve pool teachers
who possessed the requisite qualifications, formed a separate and distinct class by
reason of the service they had rendered to the State in general, and to the educational system
in Uttar Pradesh, in particular, in difficult circumstances, and therefore, they were more
suited to be appointed to the post which had fallen vacant in recognised institutions and
which were to be filled by direct recruitment than those who had not rendered such service.
While dealing with Articles 14 and 16 of the Constitution, the Supreme Court has made it
clear that the Government being the largest employer in the country and employment or
appointment to an office under it is a valuable right possessed by citizens, but yet, Article 14
of the Constitution does not forbid classification. The Supreme Court has stated the legal
position in the following words in paragraph 40 in Prabodh Verma’s case:
“40. The principle underlying the guarantee of Article 14 is not that the same rules
of law should be applicable to all persons within the territory of India irrespective
of differences of circumstances. It only means that all persons similarly
circumstanced should be treated alike and there should be no discrimination
between one persons and another if as regards the subject-matter of the
legislation, their position is substantially the same. By the process of classification,
the State has the power to determine who should be regarded as a class for the
purposes of legislation and in relation to a law enacted on a particular subject. The
classification to be valid, however, must not be arbitrary but must be rational. It
must not only be based on some qualities or characteristics which are to be
found in all the persons grouped together and not in others who are left out but
those qualities or characteristics must have a reasonable nexus or relation to the
object of the legislation. In order to pass the test, two conditions have to be
fulfilled, namely: (1) that the classification must be founded on an intelligible
differentia which distinguishes those that are grouped together from others, and (2)
the differentia must have a rational nexus or relation to the object sought to be
 achieved by the legislation [see In re The Special Courts Bill, 1978, 1979 (2) SCR
476, 535 : 1979 (1) SCC 380, 425 : AIR 1979 SC 478]”
40. The Supreme Court in the Prabodh Verma’s case, tested the Ordinance in the light
of the above principles. While applying the first test, the Supreme Court has taken note of the
following factors as stated in paragraph 42:
“42. The first question which, therefore, arises is “Whether there is any intelligible
differentia which distinguishes teachers put in the reserve pool by Ordinance 22
of 1978 from other applicants for posts of teachers in recognized institutions?”
The reserve pool teachers were those who had come forward at a time when the
teachers employed or a large majority of such teachers, in the recognized
institutions, had gone on an indefinite strike and had continued the strike even after
it had been declared illegal. Had the strike continued almost all the recognized
institutions in the State would have had to close down putting the students to
great hardship and suffering and causing a break in their education. It was in these
difficult and trying times that the reserve pool teachers came forward to man the
recognized institutions. Presumably, it was this that brought about a settlement of
the strike. It must be borne in mind that the reserve pool teachers joined the
recognized institutions during the period of the strike in circumstances in which
they exposed themselves to great hostility from the striking teachers. They,
therefore, did so running a certain amount of risk for there is always a possibility of
a strike turning violent. Yet another hazard they faced was that, were some of the
reserve pool teachers to apply later for the posts of teachers in a recognized
institution which had fallen vacant and were to be selected under Section 16-E of
the Intermediate Education Act, they would have had to work together with those
teachers who had gone on strike and had been taken back and they would then
have to face their hostility. The assumption made by the High Court that the
appointment of reserve pool teachers to the vacancies which had occurred blocked
the chances of promotion of those working in the Licentiate Teachers’ Grade was
factually not correct. There was thus no question of a vacancy to be filled by
promotion being filled by any teacher in the reserve pool or of such reserve pool
teachers blocking the chances of promotion of other teachers working in the
Licentiate Teachers’ Grade in recognized institutions. The reserve pool teachers
were originally appointed during the period of the strike under U.P. Ordinance 25
of 1977 and it should be borne in mind that this Ordinance expressly required
appointment of persons possessing requisite qualifications. All the reserve pool
teachers thus possessed the requisite qualifications and this fact is not disputed
before us. Almost all who applied for these posts and were not in the reserve pool
must have been qualified to be appointed to posts in recognized institutions during
the pendency of the strike. None of these applicants, however, came forward to
join a recognized institution during that period as the reserve pool teachers did. The
other applicants for the posts of teachers, therefore, stood in a different class from
the reserve pool teachers and it would be wrong to equate these two classes
together as forming just one class.”
41. While addressing the second question, the Supreme Court in Prabodh Verma’s
case, has held as under in paragraph 43:
“43. The object of that Act as shown by its Preamble and different provisions is to
ensure that educational institutions managed and conducted by private
 management are staffed and run properly. To provide therefore that those who had
already shown their concern for the maintenance and continuity of the educational
system in the State should receive a preferential treatment in recruitment over those
who had not shown such concern cannot be said to be foreign to the object of
the legislation. If the State were not to appreciate in a concrete form the services of
those who came to its aid in an emergency, the result would be that in a future
crisis nobody would be willing to come forward to render similar assistance to the
State. If, when faced with difficulties in maintaining a service, and particularly an
essential service, the State wants to overcome those difficulties and to ensure
that a similar situation does not arise in the future, it is open to the State to do so by
motivating people to come forward and render aid to the State by making them feel
that if they do so, they would receive a reward. Such motivation would be brought
about by rewarding those who have rendered such services in the past. Giving a
preferential right in recruitment would be both a reward for past services of this
kind and an incentive to others to come forward and render similar assistance to the
State in the future. It cannot, therefore, be said that the action of the State in giving
a reward which would at the same time be an incentive to others has no rational
basis with the objective sought to be achieved by the concerned legislation. In fact
the employment of such persons by giving them preference in recruitment would
be conducive to the maintenance and smooth functioning of an essential service in
the future.”
42. The Supreme Court in the Prabodh Verma’s case therefore held that the reserve
pool teachers formed a separate and distinct class from other applicants for the post of
teachers in recognised institutions. Similarly, in the case on hand, the temporary
employees who staked their claim at the point of crisis, where the entire State Government
employees had gone on strike, it will have to be held that they did take a very grave risk
when they came forward to accept temporary employment with a consolidated pay, which
put them all in a grave risk, as they had to earn the displeasure of the striking force, which
would have caused any amount of mental stress at that point of time. That apart, by accepting
such temporary employment, they had assisted the State to run its machinery without any
disruption and thereby provided a smooth administration which was in public interest.
Therefore, here also, the case of the temporary employees has not only to be held to be a
class by themselves, distinguishing from the other persons and such status of the temporary
employees had a nexus and relation to the object that was sought to be achieved in the
present juncture when their absorption is resorted to by permitting them to undergo a
Special Competitive Examination, that too by the State employment machinery, namely the
TNPSC. It cannot be held that the present attempt of the State Government in resorting to the
holding of a Special Competitive Examination for the temporary employees for filling up of
the posts of 7,702 from amongst 11,356 persons, was in violation of Articles 14 and 16 of the
Constitution or for that matter, any of the statutory Rules or Regulations.
43. Rule 48 of the Tamil Nadu State and Subordinate Services Rules reads as under:
“Notwithstanding anything contained in these rules or in the special rules, the
Governor shall have power to deal with the case of any person or class of persons
serving in a civil capacity under the Government of Tamil Nadu or of any person
who has or of any class of persons who have served as aforesaid or any candidate
or class of candidates for appointment to a service in such manner as may appear
to him to be just and equitable:
 Provided that, where any such rule is applicable to the case of any person or class
of persons, the case shall not be dealt with in any manner less favourable to him or
them than that provided by that rule.”
44. Rule 2(14) of the Tamil Nadu State and Subordinate Services Rules defines
what is “recruited direct”, which states that a candidate is said to be “recruited direct” to a
service, class, category or post when, in case his first appointment thereto has to be made in
consultation with the Commission, on the date of its notification inviting applications for the
recruitment and in any other case, at the time of his first appointment thereto.
45. Rule 2(15) of the Tamil Nadu State and Subordinate Services Rules defines
“recruited by transfer”. Rule 2(18) of the Tamil Nadu State and Subordinate Services Rules
defines “service”, which means a group of persons classified by the State Government as a
Subordinate or a State Service, as the case may be.
46. Rule 11 of the Tamil Nadu State and Subordinate Services Rules deals with the
enabling power of the State Government to provide appointments by agreements
inconsistent with any of the Rules made under the proviso to Article 309 of the Constitution
or continuing by Article 313 of the Constitution. Sub-rule (2) to Rule 11 makes it clear that a
person appointed under sub-rule (1) shall not be regarded as a member of the service in
which post to which he is appointed is included and shall not be entitled for any preferential
claim.
47. The proviso to Article 320(3) of the Constitution empowers the Governor of the
State to make regulations specifying the matters in which either generally or in any particular
class of case or in any particular circumstances, it shall not be necessary for a Public
Service Commission to be consulted.
48. A conjoint reading of the above provisions makes it clear that while the temporary
employees formed a class by themselves, their employment as temporary hands cannot be
regarded as either illegal or irregular in any respect. Inasmuch as they all came to be
employed by invoking Rule 11 of the Tamil Nadu State and Subordinate Services Rules by
resorting to a legal method of calling for sponsoring of candidates from the respective
Employment Exchanges by duly adhering to the seniority in the registrations and after
holding an interview, there was no element of any illegality or irregularity in their
appointments as temporary hands. By virtue of the application of Rule 11(2) of the Tamil
Nadu State and Subordinate Services Rules, since they were not born on the service of the
State, it will have to be held that there is no question of application of Rule 2(15) of the
Tamil Nadu State and Subordinate Services Rules, which defines “recruited by transfer”.
However, when the State Government by invoking the power vested in the Governor under
the proviso to Article 320(3) of the Constitution, has come forward with the issuance of the
impugned G.O. for holding a Special Competitive Examination through the TNPSC
within the classified group of such temporary employees numbering 11, 356 or there about, it
can never be held that such a step resorted to by the State Government was in
contravention of any of the statutory Rules or Regulations or for that matter, there was any
infringement of the right to equality or discriminatory clause as enshrined under Articles 14
and 16 of the Constitution. As has been explained in the earlier paragraphs, such temporary
employees, by virtue of their initial induction as temporary hands, were lawfully entitled for
such a special treatment, as they have formed into a class by themselves distinguishing from
other unemployed graduates like that of the petitioners in W.P.No.43626 of 2006. Moreover,
by resorting to such Special Competitive Examination, the State Government has not also
given a go-by to the rule of reservation, inasmuch as the said rule was applied even while
making the initial appointment as temporary hands, apart from giving a specific
direction under the impugned G.O. that the rule of reservation would be strictly followed.
The learned Special Government Pleader has also in his submissions confirmed that the
petitioners need not have any apprehension that the rule of reservation will not be followed
even while making the absorption under the impugned G.O.
49. In the light of our above conclusions, when we consider the submission of the
petitioners that the appointment of temporary employees was irregular and therefore, the
State cannot resort to their regularisation, the same is not substantiated. On the other hand,
the appointment of temporary employees came to be regularly made after getting necessary
sponsor from the respective Employment Exchanges based on their seniority in registration
and after holding an interview. If the petitioners or any other person failed to avail the
opportunity at the time of such temporary appointments, they are alone to be blamed and that
cannot be permitted to be raised as a grievance at this point of time. The contention that rule
of reservation was not followed at the time of initial temporary appointment, was also not
true, inasmuch as in G.O.Ms.Nos.84 and 85, dated 4.7.2003, there was a specific direction by
the State Government to follow the rule of reservation. Wide publicity was made in the
newspapers also as regards the recruitment resorted to for temporary hands. All the above
factors go to show that initial induction of the temporary employees was valid and proper.
50. As far as the contention based on Article 320(3) of the Constitution, the said
provision was subject to the proviso contained in that clause. The proviso to Article 320(3) of
the Constitution empowers the State Government to resort to a recruitment without
consulting the TNPSC at the time of exigencies. Therefore, when the Constitution itself
provides for a special method of recruitment to be resorted to, the petitioners cannot be heard
to say that such a step taken by the State Government as a policy decision, considering the
nature of induction of the temporary employees at the time when their services were
imminently required to get over the crisis and thereby treating them as a class by themselves,
cannot be held to be one not permissible in law. As pointed out by Ms.Vaigai, learned
counsel appearing for one of the contesting respondents, Rule 48 of the Tamil Nadu State and
Subordinate Services Rules, itself enables the State Government to go in for such a special
recruitment without reference to the TNPSC.
51. Therefore, the contention of the petitioners that the present attempt of the State
Government providing for a Special Competitive Examination to be conducted for the
temporary employees alone was contrary to the Rules, is under a total misconception. On the
other hand, it will have to be held that such a methodology resorted to by the respondent-
State under the impugned G.O. was permissible under the Rules as well as the proviso to
Article 320(3) of the Constitution.
52. Since we have held that the temporary employees are a class by themselves, that
there was no irregularity in their initial induction and that the present step taken by the
respondent-State to absorb them by resorting to a Special Competitive Examination through
the TNPSC, is also permissible in law, we do not find any illegality or irregularity in the said
action of the respondent-State. Consequently, we also hold that there is no infirmity in the
G.O. in these writ petitions in order to interfere with the same.
53. We have given our anxious consideration to the ruling of the Supreme Court in
Umadevis’ case, 2006 (4) SCC 1, and have noted the facts involved in that case, wherein the
appointments were irregular on the face of it and that such appointments de-hors the Rules,
cannot be treated to be regularised either by the Tribunal or the Court, which has been
deprecated by the Supreme Court in that case, which is not the case on hand. As far as the
application of the decision of the Supreme Court in Umadevi’s case, 2006 (4) SCC 1, as held
by us earlier, the case on hand in the light of its similarity to Divakar’s case, 1982 (3) SCC
341 and Prabodh Verma’s case, 1984 (4) SCC 251, comes within the excepted category set
out by the Supreme Court in Umadevi’s case, 2006 (4) SCC 1, namely that there was no
illegality or irregularity in the initial appointment of the temporary employees and that the
Special Competitive Examination directed to be held is well within the permissible Rules as
well as the Constitutional provisions and therefore, not hit by the general ratio-
decidendi prohibiting regularisation of persons who enter through back-door as held in that
case.
54. Having regard to our above conclusions, we also hold that there is no infringement
of either Article 14 or Article 16 of the Constitution, as we do not find any discriminatory
treatment meted out to the petitioners or similarly placed persons, inasmuch as the present
temporary employees have been held to be a class by themselves and there is no scope
for the petitioners to compare themselves with the temporary employees. We, therefore,
hold that the impugned G.O. is valid in law and there is no case made out in both the writ
petitions for interfering with the same.
55. Both the writ petitions are dismissed. No costs. The Miscellaneous Petitions are
closed.
Petitions dismissed.

[2007 (2) TNCJ 68 (Mad)]

MADRAS HIGH COURT
BEFORE:
S.R. SINGHARAVELU, J.
B.K. SUBRAMANIA SAH (DIED) AND OTHERS …Appellants
Versus
B.S. RAMACHANDRAN AND OTHERS ..Respondents
[Appeal Suit No 1112 of 2004, decided on 7 June, 2007]
th

(A) Civil Procedure Code, 1908—Section 96—Appeal—Against preliminary

decree for partition of 3/4th share in suit property and injunction in favour of plaintiff
—Appreciation of evidence— Plaintiff paid Rs.1.20 Lakhs to the defendant—
Concretely found—Defendant stated in his one letter that such of the payment of
plaintiff was only as a matter of help—Unless defendant shows what was the other help
for which the amount was paid, it could be inferred that the plaintiff paid it only as a
contribution to purchase a house—Plaintiff is entitled to such portion of the house in
proportion of the money paid by him—Plaintiff claimed 3/4 th share— Subsequent
event—Defendant improved suit property by raising first floor and second floor—No
proof to the effect that plaintiff has also contributed for the first and second floor—
Plaintiff is entitled to ¾ share in the ground floor—Judgment and decree of trial Court
modified—Orders passed accordingly. (Paras 10, 20, 22 and 23)
(B) Words and phrases—Word ‘contribution’—Explained.
(Para 21)
 Case law.—AIR 1998 SC 2776; 1999 (III) CTC 717; AIR 1999 SC 1823; AIR1973 Cal
128; 84 L.W 172; 1973 (1) M.L.J. 189; 1973 (II) M.L.J. 203; 1978 (I) MLJ 505; (1952)8
D.L.R Tr. Co 200; 1962 (II) M.L.J 193.
Counsel.—Mr. F. X.A. F. Denny, for the appellants; Mr. A. Venkatesan (for R1) and
Mr. M. Thomas Acquinas (for R2), for the respondents.
JUDGMENT
S.R. SINGHARAVELU, J.—This appeal arises against the judgment and decree of
learned Additional District Judge of Fast Track Court-V, Madras, in passing a
preliminary decree for partition of 3/4th share in suit property and injunction in favour of
respondent/plaintiff; against which, this appeal was preferred by the defendant.
2. For the sake of convenience, the parties are referred to as they are described in the
plaint. Admittedly, the appellant/defendant is the father of respondent/plaintiff. Up to the
month of June, 1995, they were amicably living and thereafter, misunderstanding between
the parties arose in respect of the relationship with the daughters of the defendant, who are
the sisters of the plaintiff. There were two elder sisters, one younger sister and two younger
brothers for plaintiff. D.V. Mohan Sah is the brother-in-law of the plaintiff. Under Ex.B-1,
the plaintiff has produced some accounts in connection with Zari business done with Mohan
Shah and that document depicts the income gathered by the plaintiff on every month of 1987.
3. The plaintiff claims 3/4th share in suit property, by contending that he had
contributed a sum of Rs.1,20,000/- towards the sale price of Rs.1,60,000/- of the suit property
that was purchased under Ex.A-1 dated 26.10.1988 in the name of the plaintiff’s father.
Plaintiff would further contend that such payment of Rs.1,20,000/- was made by two demand
drafts of Rs.10,000/- each dated 26.10.1988 and that balance of Rs.1,00,000/- was paid in
cash, which was known to Dhanusu, Thangaiah, friend of defendant (P.W.2) and
T.S.N.Prabhakaran, Advocate (P.W.3). The plaintiff and defendant were respectively
examined as P.W.1 and D.W.1. There are also correspondence between plaintiff, defendant
and Thangaiah, which were produced and marked as documents in this case. They throw
much light upon the said transaction.
4. Although defendant has denied the alleged contribution of Rs.1,20,000/- made by
the plaintiff, the above mentioned correspondence between the parties of the suit and with
one Thangaiah, P.W.2 would throw much light upon it. Thangaiah, in his letter dated
18.07.2002 to defendant, which was marked as Ex.A-5, has mentioned as follows:
“the first thing that you had told me when I returned from abroad, is that your son
had given you Rs.1,20,000/- for purchase of the house. Besides, in your letter
dated 23.05.2002, you have again mentioned it and asked me to arrange for its
repayment, which I will if you enter into an amicable settlement with your son.”
5. Even in a letter of defendant to P.W.2, Thangaiah, which is dated 23.05.2002 (Ex.A-
8), the defendant has chosen to write the following:
“My eldest son Ramachander has been sending his wife for asking for Rs.7 lakhs
share. I have never asked for a loan. He gave Rs.1.20 lacs for help. But
Ramachander has given accounts to his father in magic manner. In post office, the
amount will be doubled. National Saving Certificate i.e. Rs.1.2 lacs will become
Rs.2.4 lacs. But my eldest son is counting every year interest at the rate of Rs.1.20
lacs for 6 years. He is demanding for 6 years at Rs.7 lacs. He sent letter daily,
 during March, 1995 and consequently during April 1996 .... Please arrange to give
me Rs.1.40 lacs so that I can give Rs.1 lac to Ramachandran and Rs.0.40 lacs to
Sankar for medical help”.
The name Ramachander and the reference eldest son in the above letter do indicate
only the plaintiff.
6. Again, in another letter dated 22.08.2002 (Ex.A-11) by defendant to P.W.2, it
was mentioned that it would be good on the part of P.W.2 to have repaid Rs.1.20 lakhs to the
son of the defendant. Similarly, in another letter dated 25.08.2002 (Ex.A-13) it was
mentioned by the defendant as follows:
“If you want to help us, you can give Rs.1.20 lakhs to my son R. Chander in full
settlement”.
7. In yet another letter dated 08.09.2002 of defendant (Ex.A-15) to P.W.2, it has been
stated as follows:
“In this connection, I want to inform you that I am due to BSR Rs.1 lac only and
balance amount Rs.0.20 lac towards my share of the chit amount due from CBE
chit share”.
The above mentioned BSR refers to B.S.Ramachander Sah, the plaintiff.
8. Likewise, P.W.2, in his letter dated 14.09.2002 (Ex.A-16) addressed to defendant,
has mentioned as follows:
“I committed Rs.1.20 lakhs you already sent your wife to my lodge to obtain
Rs.500/- and cheque for Rs.one lakh.”
In the first notice issued by plaintiff on 17.08.1999 which is marked as Ex.A-6, it has
been mentioned as follows:
“My client, who is your son, states that he had paid you Rs.20,000/- by way of two
demand drafts for a value of Rs.10,000/- each drawn at TNSC Bank prior to
26.10.1988 and also Rs.1.25 lakhs in cash on 26.10.1988, in all Rs.1,45,000/- as
you promised to buy a house for my client for the above said consideration..... My
client states that you have bought a house located at No.4, Narayana Street, 8th
Lane, Pudupet, Chennai-2, which you are presently occupying, recently but you
did not give that house to my client, instead you occupied that house.... You are
hereby called upon to provide a house for the consideration made or pay back the
amount of Rs.1,45,000/- with interest calculated from 26.10.1988 forthwith.”
9. Coming to the evidence aspect, P.W.1, in the course of his chief examination,
deposed as follows:
10. Thangaiah, P.W.2, has deposed as follows:
This P.W.2 was a friend of defendant right from 1958 and therefore, he was in close
contact with him. He also said that he has acted in such a manner to settle the issue amicably
between the father and son, who are the parties to the suit.
11. Even P.W.3 Prabakaran, Advocate has deposed as follows:
12. In view of the above evidence, it is now futile on the part of the defendant to
contend that he had never received any amount from plaintiff. An over all appraisal of all the
above oral evidence and the particulars found in the letter correspondence between
plaintiff and defendant and Thangaiah would go to show that defendant received a sum of
Rs.1,20,000/- from plaintiff. That is why D.W.1 in the course of cross examination has
pleaded discharge by deposing as follows:
Thus, the plea of discharge by D.W.1 itself would go to show that he had received
Rs.1.20 lakhs from plaintiff. For his mentioning in his letter addressed to P.W.2, in
the course of cross-examination of defendant, it was said as if P.W.2 was due to give him a
loan of Rs.5 lakhs and in order to get the same, he was necessitated to address him to make
payment to plaintiff a sum of Rs.1.20 lakhs. This explanation is unacceptable because he
could have directly addressed to P.W.2 requiring him to repay his loan of Rs.5 lakhs if at all
it was true. Therefore, it is concretely found that plaintiff had paid Rs.1.20 lakhs to
defendant.
13. In view of this finding, the reliance made by the learned counsel for the defendant
upon Gurmukh Ram Madan v. Bhagwan Das Madan, AIR 1998 SC 2776, cannot serve any
purpose. That was a case, where the plea of plaintiff of having contributed equally
towards the cost of suit house was not supported by any oral or documentary evidence.
Therefore, it was held therein that contribution of price for suit house should be factually
proved and in default plaintiff should fail; but that may not be applicable to the present facts
of the case, where proof of payment by the plaintiff to the defendant is available as
aforesaid.
14. The next question would be whether the payment of Rs.1.20 lakhs made by the
plaintiff was as contribution to the purchase of suit house for a sum of Rs.1.60 lakhs?
True it is that under Ex.A-1 dated 26.10.1988, suit house, which is old No.4, New
No.2, Narayana Naicken Street, 8th Lane, Pudupet,Chennai, was found to have been
purchased in the name of the defendant as he happened to be the elder member of the family.
The sale consideration was mentioned in the document as Rs.1,60,000/-. Now it is to be seen
as to whether the payment made by the plaintiff for a sum of Rs.1,20,000/- was only as
contribution for purchase of the suit house or merely a transaction between the parties to
the suit, independent of the purchase of the suit property. Of course, it is to be proved only
by plaintiff as was mentioned by the learned counsel for the defendant by relying upon
Vembu Ammal v. Pattuammal, 1999 (III) CTC 717, wherein it was held that plaintiffs had
pledged properties that was purchased from out of the joint family income and when there is
no evidence to prove that the properties in the name of the defendant were purchased from
the joint family nucleus, the decree passed by the trial court is to be set aside. Similarly, as
held in Pawan Kumar Gupta v. Rochiram Nagdeo, AIR 1999 SC 1823, the party, who wants
to prove that the recitals of a document are untrue must bear the burden to prove it. In this
case also, the recitals of the sale deed of the suit house was as if entire money was paid by
defendant and therefore, it is for the plaintiff to prove that he also contributed certain amount
for the said purchase. The same position was laid in S.N.Ghosal v. Ena Dutta, AIR 1973 Cal
128, wherein it was held that the person in whose name property stands is presumed to
be the owner and anybody denying the said ownership must prove that he is also a joint
owner. In proving the plaintiff’s case, the plaintiff cannot be allowed to abandon the
specific plea and seek relief on the facts alleged by the defendant. This was also laid down in
Lodd Balamukundas v. K.Kothandapani, 84 L.W.172. Thus, the burden lies on the plaintiff
to prove the case.
 15. Learned counsel for the defendant pointed out that in the first notice to defendant
dated 17.08.1999, it was only stated as if defendant promised to buy a house for plaintiff for
the consideration that he paid namely Rs.1.25 lakhs. The plaintiff has mentioned in such of
his notice that the defendant is to either repay the amount or give a house situate in new No.2,
Narayana Naicken Street, 8th Lane, Pudupet, Chennai, which was purchased by the
defendant. The learned counsel for the defendant submitted that assuming that the defendant
had promised to get a house for the plaintiff and based upon the promise if the plaintiff had
parted away a sum of Rs.1,20,000/-, then it cannot be squarely taken as if plaintiff had
contributed for particular purchase of the specific suit property. He would contend that there
was no consensus of mind between the parties to make use of this amount of Rs.1,20,000/- in
getting the suit property purchased. The fact remains that in the plaintiff’s notice dated
17.08.1999, it is alleged that there was a promise made by the defendant to purchase a
house for plaintiff and based upon which, the latter has paid a sum of Rs.1,20,000/- to the
defendant. It is on 26.10.1988, the defendant had purchased the suit property bearing new
door No.2, Narayana Naicken Street, 8th Lane, Chennai. Now, the question arises as to
whether the payment made by the plaintiff was as a term loan or as contribution to the price
of the suit property.
16. In this connection, learned counsel for the plaintiff relied upon Ramachandra
Gowder v. Nanjappa, 1973 (I) MLJ 189; Guruswami Asari v. Raju Asari, 1973 (II) MLJ 203
and Ramaswami Naidu v. Shyamala Devi, 1978 (I) MLJ 505. In 1973 (I) MLJ 189, the
following observation made at page 165 of Snell’s Principles of Equity (Twenty-fifth
edition) was culled out in the following lines:
“Another common case of an implied or resulting trust is where on a purchase
property is conveyed into the name of someone other than the purchaser. The clear
result of all the cases, without a single exception, is, that the trust of a legal estate,
whether freehold, copyhold, or leasehold, whether taken in the names of the
purchasers and others jointly, or in the names of others without that of the
purchaser; whether in one name or several; whether jointly or successive, results to
the man who advances the purchase money. This is a general proposition
supported by all the cases, and there is nothing to contradict it, and it goes on a
strict analogy to the rule of common law.
The doctrine applies to pure personality as well as lands. It also applies where two
or more persons advance purchase money jointly and the purchase is taken in the
name of one only, in which case there is a resulting trust in favour of the other or
others as to so much of the money as he or they advanced”.
17. In the second cited case viz., 1973 (II) MLJ 203, it was observed as follows:
“11. Similarly, if A and B enter into an agreement to contribute the
consideration for the purchase of a property and to purchase the same in the name
of B for the benefit of both, certainly A and B will be co-owners of the property,
notwithstanding the title deed standing in the name of B and, in the case of a
dispute between them, A will be entitled to file a suit for partition and recovery
of possession of his share of the property as agreed to between them. …
Section 45 of the Transfer of Property Act has a limited operation. All that the
section says is that, where immovable property is transferred for
consideration to two or more persons and such consideration is paid out of a fund
 belonging to them in common, they are, in the absence of a contract to the
contrary, respectively entitled to interests in such property identical, as nearly as
may be, with the interests to which they were respectively entitled in the fund;
and, where such consideration is paid out of separate funds belonging to them
respectively, they are, in the absence of a contract to the contrary, respectively
entitled to interest in such property in proportion to the shares of the consideration
which they respectively advanced. Thus it will be seen that Section 45 only states
that the interest inter se as between the several joint purchasers of an immovable
property will, subject to contract between them, be in the proportion in which they
were entitled to the consideration for the purchase, and has nothing whatever to do
with the method of creating common ownership or the manner in which several
persons can become common owners in respect of a single item of property”
18. In the third cited case 1978(I) MLJ 505, it was observed as follows:
“Co-ownership is a relationship which springs and slopes from consensus and
contract. Legislation has only imprinted on the concept of co-ownership certain
rights which have a supervening effect which are declaratory of the rights inter se
as between the co-owners. The legal relationship is always knitted in a
framework of joint ness and no one therein can predicate with certainty as to what
portion of the property held in common is his; and an element of inseparability is
inhered in the doctrine of co-ownership. ….
If, therefore, there is evidence that two or more persons purchased the property or
an interest in the property, then the rule in Section 45 of the Transfer of Property
Act would be automatically attracted, unless the parties have contracted
otherwise in the matter of their quantum of interest in the joint property. The fact
that the property was purchased in the name of one of the co-owners, would not
make a serious dent on the above rule of good conscience, provided however it is
established by acceptable evidence that such purchase in the name of co-owner was
by accident or by consent and that the consideration for such purchase emanates
from a common fund. ….
In a proved case of such a holding of property by an individual in his own
name, but for the benefit of others, who are also interested in it, the individual has
accepted his position as a constructive trustee of such property and he has to hold
the same for and on behalf of the person for whom and for whose benefit he holds
it. ….
Section 90 of the Trusts Act says “where a tenant for life, co-owner, mortgagee or
other qualified owner of any property, by availing thereof of his position as
such, gains an advantage in derogation of the rights of the other persons
interested in the property or where any such owner on representing all persons
interested in such property, gains any advantage he must hold for the benefit of all
persons so interested the advantage so gained, but subject to “....”. It therefore,
follows that the concept of co-ownership has certain peculiar rights and liabilities
attached to it and that is why it is accepted law that a co-owner cannot even by the
mere possessor title of the property in his claim the same by adverse possession.
One can be said to hold a property adversely to the other, provided it is open,
continuous and public possession which is to the prejudice of the other co-
owner. Since such continuous and open and adverse possession by one co-owner
against the other is not possible, having regard to the indivisible and well-knit
 rights of all co-owners of the totality of the property, one co-owner cannot set
up an adverse title to the prejudice of the other co-owner though he may be for all
physical purposes incorporeal possession of the concerned property”.
19. In the above case, reliance was placed upon Arokia Manikaran and another v.
Sowarivaru Manikaran and others, (1952)8 DLR.Tr.Co.200), wherein it was held as follows:
—
“Though strictly speaking, the plaintiff and the first defendant cannot be
deemed to have formed a joint Hindu family still where a person acquires certain
property with the help of funds which belonged to him jointly with the other and
are available in his hand, the co-owners are entitled in equity to the proportionate
interest in the newly acquired properties and a suit for partition cannot be
resisted merely on the ground that the co-owners do not strictly form a joint Hindu
family”.
In 1978(I) MLJ 505, it was quoted as follows:
“32. In Halsbury’s Laws of England, Third Edition, Vol.38, page 868, it has been
observed that the principle that the property is deemed to be held on a resulting
trust applies where several persons purchase property in the name of one; and
where, however, two or more persons purchase property in their joint names
or transfer property into their joint names, to contribute the purchase money or
property in equal shares, they hold the property as joint tenants with benefit of
survivorship both at law and in equity, unless there is evidence of a contrary
intention on their part at the time of the purchase or transfer or there are
circumstances from which such an intention can be inferred; and if they
contributed the purchase money or property in unequal shares, whether the
property is purchased in the name of one or in their joint names, there is a tenancy
in common between them in equity, though even in this case the equitable
tenancy in common may be rebutted by evidence or circumstances.
33. Snell has observed in his Principles of Equity (Twenty-seventh edition) at page
38:
“(c) Equal divison:
(1) the principle. In addition to equity’s ancient dislike of a joint tenancy the
maxim ‘equality is equity’ may be illustrated by a number of more modern
instances. In general, the maxim will be applied whenever property is to
be distributed between rival claimants and there is no other basis for
division. “I think that the principle which applies here is Plato’s definition
of equality as a ‘short of justice’: If you cannot find any other, equality is
the proper basis”.
34. In the case now before us, it having been proved that the acquisitions of the A
schedule properties were made by the joint efforts and with the income accrued
from the joint efforts of these brothers, which had been mixed up with the
personal income of the first defendant from the races, in the absence of evidence as
to what exactly was the contribution made by the respective parties towards these
acquisitions and in the absence of any agreement between the two brothers as to
their respective interests in the joint acquisitions, the plaintiff will be certainly
entitled to his half share in the A schedule properties”.
 20. Learned counsel for the plaintiff further submitted that true it is that by the
plaintiff’s letter Ex.B-2 dated 25.05.1996 to his father, out of desperation, he has
mentioned that he will not ask for any share of his latter’s property. That may be adverse to
the interest of the plaintiff. Similarly, defendant also had abruptly denied the
receiving of Rs.1.20 lakhs from plaintiff, which was found untrue as per the evidence
mentioned above. Thus, it is able to be seen that both parties are exaggerating matters. But
what we are concerned is only to chaff the evidence and find out the truth as was held in
Thirumilai Iyengar v. Subba Raja, 1962 (1I) MLJ 193, in the following lines:
“The duty of the Court is to give effect to the inference to be drawn from the
evidence on record and it is not prevented from recording a finding which may not
be consistent with the pleadings of either party in a suit”.
Therefore, by chaffing the evidence ultimately it can be found that defendant had
received a sum of Rs.1.20 lakhs from the plaintiff. Even though under plaintiff’s first
notice dated 17.08.1999 he has asked for the entire property or the entire refund of the
amount, defendant has stated in Ex.A-6 dated 29.07.2002 as follows:
“I state that as falsely stated in your notice I never promised to buy a house
for B.Ramachander Sah, I have bought for my own occupation and not for
Ramachander alone.”
This “not for Ramachander alone” indicates that Ramachander, as claimed in the first
notice dated 17.08.1999, is not entitled for the entire property; thus indicating that he will be
entitled to a portion.
21. The word ‘contribution’ according to Oxford University is follows:
(1) the act of contributing
(2) something contributed, esp. money
(3) an article etc. contributed to a publication.
(Middle English from Old French contribution or Late Latin contributio (as
Contribute)
22. The defendant also in one of his letters mentioned that such of the payment of
plaintiff was only as a matter of help. Unless the defendant shows what was the other help,
for which the amount was paid, then we can only say that the plaintiff had paid it only as a
contribution to purchase a house. If the contribution is true, then under Section 45 of
Transfer of Property Act, the plaintiff is entitled to such portion of the house in proportion to
the money paid by him. Thus plaintiff claimed 3/4th share.
23. Learned counsel for the defendant submitted that even after the purchase of suit
property, which was by then a ground floor, the defendant had improved it by raising first
floor and second floor and the plaintiff failed to prove the contribution made for the
improvement. Although plaintiff had mentioned that he also contributed for the first and
second floor of the suit property, absolutely there is no proof for the same. So, the
plaintiff will be entitled to 3/4th share in the ground floor. In so far as that there is
acquiescence against the construction of father in the first and second floor, the plaintiff
may not make a claim.
For the aforesaid reasons, the judgment and decree of the trial Court is modified and
there will be a declaratory decree only for 3/4th share in the ground floor of the suit property
and the defendant is entitled to first and second floor of the suit property constructed by him.
Since the plaintiff is entitled for 3/4th share in the ground floor, it can be worked out by
construing it as partible estate appointment of Commissioner by taking suitable steps
therefor. Therefore, injunction is not granted. So far as the rental collections is concerned, he
can take steps before the trial Court under Order XX Rule 12 CPC. No costs.
Appeal disposed of.

[2007 (2) TNCJ 79 (Mad)]

MADRAS HIGH COURT
BEFORE:
S. PALANIVELU, J.
P. KANDASAMY ....Petitioner
Versus
NEYVELI LIGNITE CORPORATION LTD. REP.
BY ITS DEPUTY GENERAL MANAGER AND ANOTHER …Respondents
[C.R.P. (N.P.D) No 1425 of 2005, decided on 8th June, 2007]
(A) Arbitration and Conciliation Act, 1996—Sections 2 (1) (e), 34 and 36—Civil
Procedure Code, 1908—Section 2 (4)—Expression “Court”—Means—District Judge of
a District Court alone is the competent authority to exercise the original civil
jurisdiction in a district—And not a subordinate Judge. (Paras 11and 12)
(B) Practice and procedure—Course of proceedings to be conducted —Sub-
Court is not competent to try proceedings under the Arbitration and Conciliation Act—
Merely because a proceeding is instituted before a wrong forum, it cannot be said that
the said forum has to reject the same, for lack of jurisdiction—No written agreement
between the parties while referring the matter to arbitration—To meet ends of
justice Principal Subordinate Judge directed to return the arbitration case pending on
his file to be presented before the Principal District Court—Principal District Judge
directed to dispose of the matters in accordance with law within a period of six months.
(Paras 14 to 18)
Case law.—AIR 2007 SC 465; AIR 2006 Mad 218; 2006 (1) CTC 178; 1997 (III) AD
(Delhi) 586.
Counsel.—Mr. Anantharaju, for the petitioner; Mr. N. A. K. Sharma, for the
respondent.
JUDGMENT
S. PALANIVELU, J.—With consent of both the counsel, the civil revision petition itself
has been taken up for final disposal.
2. This civil revision petition is preferred by the petitioner, to declare the Arbitration
O.P.No.28 of 2005, pending on the file of Principal Sub-Court, Vridhachalam, as non-est in
law and void ab initio.
3. The factual background of the matter is as follows :
(i) The petitioner was a Contractor under the respondent Corporation and he
executed five works during the year 1998. There was a fire accident on 05.05.1998
in the Additional Cooling Tower of the Fertilizer Factory of the respondent. The
 respondent informed the petitioner that he was responsible for the said inferno,
due to his negligence, and he had to compensate the Corporation to the extent of
Rs.6,49,425/- as damages. All the Units of the Corporation were directed not to
honour the bills of the petitioner. The petitioner filed a writ petition before this
Court and this Court, by a common order, dated 03.04.2003, in W.P.Nos.18504 of
1998, 12825 of 1999 and 328 of 2000, directed the parties to refer the matter to
arbitration. Thereafter, an Arbitrator was appointed and on 10.09.2004, an award
was passed by the said Arbitrator for a sum of Rs.3,65,431/-, directing the
respondent herein to pay the said amount to the petitioner, towards damages.
(ii) Aggrieved over the said award, the respondent filed the Arbitration O.P.No.28 of
2005 under Section 34 of the Arbitration and Conciliation Act,1996, on the file
of the Principal Sub-Court, Vridhachalam, to set aside the award, dated
10.09.2004, passed by the Arbitrator.
(iii) Then, the petitioner filed A.S.No.130 of 2004 on the file of Principal District Judge
at Cuddalore for reimbursement of damages. The petitioner also moved this Court
for stay of further proceedings in the Arbitration O.P.on the file of Sub-Court,
Vridhachalam, and stay was also granted in C.M.P.No.11494 of 2005 in this C.R.P.
(iv) Consequently, the respondent filed two applications one in I.A.No.260 of 2005
under Section 10 read with Section 151 of C.P.C. to stay the appeal proceedings in
A.S.No.130 of 2004, pending disposal of the present C.R.P., and the other in
I.A.No.261 of 2005, praying for dismissing the appeal A.S.No.130 of 2004, on the
file of Principal District Court, Cuddalore.
(v) The learned Principal District Judge, after hearing both sides, passed a common
order on 05.12.2005 in both the interlocutory applications, holding that both the
applications shall be kept pending till the disposal of the C.R.P. on the file of High
Court, Madras.
4. The bottom line contention of the learned counsel for the petitioner is that the
Principal Sub-Court, Vridhachalam, lacks jurisdiction to entertain any application under
the provisions of the Arbitration and Conciliation Act, 1996, and the proceedings before the
said Court are non-est in the eye of law.
5. On the contrary, learned counsel for the respondent would contend that the Sub-
Court has to be construed as a Court of “Original Civil Jurisdiction”, as adumbrated in
Section 2 (1) (e) of the Act and hence, the said Court is competent to try the matter.
6. In this context, it is profitable to refer to Section 2 (1) (e) of the Arbitration and
Conciliation Act, which reads thus :
“2 (1) (e). “Court” means the principal Civil Court of original jurisdiction in a
district, and includes the High Court in exercise of its ordinary original civil
jurisdiction, having jurisdiction to decide the questions forming the subject- matter
of the arbitration if the same had been the subject-matter of a suit, but does not
include any Civil Court of a grade inferior to such Principal Civil Court, or any
Court of Small Causes.”
7. In support of his contention, learned counsel for the respondent placed reliance upon
a decision of the Hon’ble Supreme Court in M/s. Pandey & Co. Builders Pvt. Ltd. v. State of
Bihar & Anr., reported in AIR 2007 SC 465, wherein, it is held as follows :
 “The definition of ‘Court’ means the Principal Civil Court of original jurisdiction
in a district and includes the High Court which exercises the original civil
jurisdiction. If a High Court does not exercise the original Civil Jurisdiction, it
would not be a ‘Court’ within the meaning of the said provision.”
8. The learned counsel also cited a Division Bench decision of this Court in
M/s.Sundaram Finance Ltd. v. M.K.Kurian & Anr., reported in AIR 2006 Mad 218. The
operative portions of the said decision are culled out as under :
“5. See Ramamirtham v. Rama Film Service, AIR 1951 Mad 93 (FB). It is thus
clear that as far as the City of Chennai is concerned, the words “Principal Civil
Court of original jurisdiction”, as defined in Section 2 (1)(e) of the Act, would
mean the High Court exercising jurisdiction on the original side and not the City
Civil Court.
8. Therefore, the view taken by the learned single Judge that the City Civil Court
should be regarded as the principal Court of Civil jurisdiction under Section 2
(1) (e) of the Act in matters involving value of less than Rs.10 lakhs is clearly
erroneous and cannot be sustained.”
9. A perusal of the above said decisions would make it clear that they are not at all
helpful to the respondent’s case, since, in both the decisions, the original Civil jurisdiction
exercisable by High Court has been dealt with.
10. Per contra, learned counsel for the petitioner cited a Division Bench decision
of the Madurai Bench of Madras High Court in The State of Tamil Nadu v. R. Sundaram,
reported in 2006 (1) CTC 178, which throws much light on the subject. The relevant portions
of the said decision are as follows:
“13. By examining the matter from any angle, it is thus apparent that the Court in
which application under Section 34 of the Arbitration and Conciliation Act can be
filed is the Principal Civil Court of original jurisdiction in a district. Moreover, as
per the definition clause contained in the Arbitration and Conciliation Act, any
Civil Court of a grade inferior to the Principal Civil Court is specifically excluded.
In view of the specific provision contained in Section 2 (1) (e) of the Act read with
Section 2 (4) of the Code of Civil Procedure, it must be taken that the expression
“Court” as contained in Sections 34 and 36 of the Act is the principal Civil court of
original jurisdiction in a district, that is to say, the District Court or the District
Judge.
14. The view expressed above by us, apparent from the plain language contained in
the Arbitration and Conciliation Act and even the Code of Civil Procedure,
receives considerable support from the decisions of several High Courts.”
11. In the above said decision, after considering and referring to a catena of decisions
of this High Court and various other High Courts, it has been concluded that the District
Judge of a District Court alone is the competent authority, to exercise the original civil
jurisdiction in a district, as contemplated in Section 2 (1) (e) of the Act and not a Subordinate
Judge. It is also opined that the clear language indicated in the Arbitration and Conciliation
Act as well as the Code of Civil Procedure leaves no room for any doubt that only a Principal
District Court of a district, namely, a Court of District Judge has jurisdiction in such matters
and not a Subordinate Judge.
 12. In view of the factual and legal backgrounds of this case, I am of the view that the
Principal District Court, Cuddalore, alone is competent to deal with the matter.
13. The next question that arises for consideration is, as to the further course of
proceedings to be conducted.
14. Legally, the Sub-Court is not competent to try the proceedings under the
Arbitration and Conciliation Act. It was represented before this Court that the matter may
be transferred to Principal District Court, Cuddalore, from Sub-Court, Vridhachalam. Merely
because a proceeding is instituted before a wrong forum, it cannot be said that the said forum
has to reject the same, for lack of jurisdiction.
15. In Geo. Miller & Co. Ltd. v. Union Bank of India, reported in 1997 (III) AD
(Delhi) 586, the Delhi High Court has held as under:
“17. In the result, it is held that this Court has no jurisdiction to try and decide the
present petition filed by the petitioner under Section 41 of the Arbitration Act. In
view of the above decision reached by me, it is not necessary to consider the other
issues raised before me. Accordingly, I direct return of the petition to the petitioner
to file the same in an appropriate Court in Lucknow in terms of clause 7.24.2 of the
contract agreement. The registry may take immediate steps to return the petition of
the petitioner to file the same in an appropriate Court. The petition stands disposed
of in the above terms but without any cost.”
16. In the case on hand, neither of the parties brought to the notice of this Court as to
whether there was any written agreement between them while referring the matter to
arbitrator and, if so, whether there are any clauses with regard to the jurisdiction of the
Courts, in case any dispute arises between them.
17. Therefore, in view of decision in Geo. Miller & Co. Ltd. v. Union Bank of India
and also in the absence of this Court being put to any notice regarding the agreement between
the parties, this Court is left with no other option except to direct the learned Principal
Subordinate Judge, Vridhachalam, to return the Arbitration O.P.No.28 of 2005, pending on
his file, to the respondent herein, who is the petitioner in the said O.P., for presenting it
before the Principal District Court, Cuddalore, and the ends of justice will be met, if it is
ordered as such.
18. Accordingly, a direction is hereby issued to the learned Principal Subordinate
Judge, Vridhachalam, to return the Arbitration O.P.No.28 of 2005, pending on his file, to the
respondent herein, who is the petitioner in the said O.P., for presenting it before the Principal
District Court, Cuddalore, and, on such return, the respondent shall present the same
before the Principal District Court, Cuddalore, within three days. Thereupon, the Principal
District Judge, Cuddalore, is directed to dispose of the matter in accordance with law, within
a period of six months.
19. The civil revision petition is disposed of, in the above terms. No costs.
Consequently, the connected C.M.P.Nos.11494 of 2005, 36 and 586 of 2007 are closed.
CRP disposed of.

[2007 (2) TNCJ 84 (Mad)]

MADRAS HIGH COURT
BEFORE:
 M. CHOCKALINGAM, J.
G. KUMARADOSS AND ANOTHER ....Petitioners
Versus
K. RAJALINGAM ...Respondent
[C.R.P (N.P.D) Nos. 745 & 746 of 2007, and C.M.P. Nos. 2 + 2 of 2007, decided on 5 th June,
2007]
House and rents—Eviction order—Confirmed on appeal— Legality of—
Landlord as on date carrying on his business in grocery in the shops situated in the
ground floor—Required additional accommodation for the purpose of godown and
to accommodate seven of his employees working in the shop—Absence of any other
building available to the landlord to satisfy his need—Landlord having his own
premises which are now occupied by the tenants and when the same are now required
by the landlord for the purpose of storing the goods—Requirements of landlord for
additional accommodation is nothing but genuine one—If tenants are not evicted,
hardship caused to the landlord could be more than the tenants—Judgment and order
of lower appellate Court suffers from no infirmity or illegality—Tenants given
sufficient time to vacate the premises—Revisions dismissed. (Paras 7 to 9)
Counsel.—Mr. P. N. Radhakrishnan, for the petitioners; Mr. S. Krishnasamy, for the
respondent.
JUDGMENT
M. CHOCKALINGAM, J.—This order shall govern these two civil revision petitions.
2. These civil revision petitions were arisen from the order of the VIII Small Causes
Court, Chennai made in RCA.Nos.410 and 413 of 2004 whereby the orders passed by the
Rent Controller in RCOP.Nos.887 and 891 of 2001 were confirmed.
3. The respondent who is admittedly the owner of the premises in question, sought
eviction of the revision petitioners/tenants on the ground of additional accommodation.
Originally these two petitioners/tenants and another were occupying three shops situated in
the ground floor and subsequently there was a construction raised in the first floor where they
were shifted; that the tenants were occupying the three shops in the first floor measuring 10’x
10' roughly each, while the landlord is carrying on his grocery business by occupying the
shops situated in the ground floor. Three RCOPs. were filed and the first RCOP. was taken
up for enquiry earlier and the same was dismissed and against the order of dismissal, the
landlord has challenged the same by way of an appeal and the same is pending. In so far
as other two RCOPs on the same ground were taken up for enquiry and on enquiry, eviction
was ordered. Aggrieved tenants preferred appeals in RCA.Nos.410 and 413 of 2004
whereby the appellate authority has confirmed the orders of the Rent Controller and hence
these two revisions before this Court.
4. Advancing his argument on behalf of the revision petitioners, the learned
counsel would submit that there are three shops in the first floor each measuring 10' x 10'
roughly and out of three RCOP petitions, one was originally dismissed and an appeal has
been preferred and the same is also pending and in so far as other two RCOPs. are concerned,
eviction was sought for on the ground of additional accommodation. A reading of the Rent
Control Original Petitions would clearly indicate that the landlord is running a grocery
shop in the ground floor and he wants to store the goods in the shops situated in the first floor
and also he wanted to give accommodation to seven of his employees, who are working in
the said shop and hence he sought for eviction. Learned counsel would further add that out
of these three shops, which shop required for the purpose of storing goods and which shop
required for accommodation of his employees was not made known and further, the
landlord who is carrying on his grocery shop, pending the proceedings has only raised
construction for go down and also for accommodation for his employees and it cannot be a
bona fide reason on the part of the respondent/landlord in seeking the premises and further in
the instant case, one of the petition was already dismissed and other two petitions at the
instance of landlord were allowed.
5. Learned counsel for the petitioner has stated about the relative hardship that the
petitioners would lose their entire livelihood as well as their customers and goodwill, if
they are thrown out from the petition premises. The petitioner in CRP.No.745 of 2007 is
carrying on electronic goods business and the petitioner in CRP.No.746 of 2007 is carrying
on Gas Stove service business and if they are directed to vacate, hardship would be caused to
them. The authorities have not considered all the aspects or any of the aspect of the matter.
Hence, both the orders of the authorities below have got to be set aside.
6. In answering to the above contention, learned counsel appearing for the
respondent/landlord would submit that the additional accommodation as put forth by the
respondent was proved that the landlord is carrying on his grocery shop and therefore for
storing his materials, he requires the premises in the first floor and also for additional
accommodation for the employees, who are working in the grocery shop and further when
all the shops are bona fidely required by the landlord, there is no need to mention which shop
is required for stay of the employees and which shop is required for storing the materials.
The contention that there was a subsequent construction of go down and also the place for
accommodation of the employees is nothing, but a false one. The petitioners/tenants have not
proved the above said contentions. But it is a empty assertion by the tenants. Under the
circumstances, the order of the Courts below have got to be sustained.
7. After careful consideration of the rival submissions made, this Court is of the
considered opinion that the order of the Rent Control Appellate Authority does not require
any interference. Originally, the respondent/landlord had shops in the ground floor where
the tenants were running their business and after construction of the first floor, they were
shifted to first floor and the landlord has commenced his business of grocery in the ground
floor. It is not the fact in controversy that the landlord as on date, carrying on his business in
grocery in the shops situated in the ground floor and at this juncture, the test has to be applied
is whether the landlord required additional accommodation as put forth by him. It is not the
case of the tenants that the landlord is having any other building anywhere and what they
urged before this Court is that he has raised additional construction for the purpose of go
down and for the purpose of the staying of his employees pending proceedings, which is a
mere assertion made before this Court. No material is available before this Court to accept
the said contention. Apart from that, in the absence of any other building available to the
landlord who is carrying on his grocery business and when he has decided to store his
material in the same building, naturally additional accommodation has got to be given to him.
In the instant case, the contention put forth by the learned counsel that out of three shops
situated in the first floor, which is required for additional accommodation for stay and which
is required for storing the materials, which in the opinion of the Court need not be given, in
view of the fact that the total area of three shops in the first floor is only 300 sq.ft. Further,
the contention put forth by the revision petitioner that if the tenants are evicted, they have to
face hardships and under such circumstances, they should not be evicted, cannot be
countenanced for the simple reason that if they are not evicted, hardship caused to the
landlord would be more than the tenants. When the landlord is having his own premises,
which are now occupied by the tenants and when the same are now required by the landlord
for the purpose of storing the goods, I am of the opinion that the requirement of landlord for
additional accommodation is nothing but genuine one in the facts and circumstances of the
case. Hence, the order of the lower appellate authority does not suffer any infirmity or
illegality which require any interference by this Court.
8. It is brought to the notice of the Court that both the tenants are carrying on their
business in the said premises for a long time and hence they must be given sufficient time in
order to find out a suitable accommodation for their shops. Under such circumstances, one
year time is given to the tenants from the date of this order for vacating and handing over
possession to the landlord and during which period, they are directed to pay Rs.1,500/- as per
the rent fixed by the authorities below.
9. The civil revision petitions are dismissed. No costs. Consequently, CMP.Nos.2 + 2
of 2007 are also dismissed.
Petitions dismissed.

[2007 (2) TNCJ 88 (Mad)]

MADRAS HIGH COURT
BEFORE:
M. CHOCKALINGAM, J.
THE MANAGING PARTNER M/S. MANI BAKERY …Petitioner
Versus
M/S. SRILAKSHMI GANAPATHY UNIT FUNDS
REP. BY ITS MANAGING PARTNER ...Respondent
[C.R.P. (NPD) No 17 of 2003, and CMP No 154 of 2003, decided on 6 June, 2007]
th

Tamil Nadu Buildings (Lease and Rent Control) Act, 1960—Sections 10 (2) (i)
and 25—Eviction order—Affirmed by the appellate forum—Legality of—Contention
raised that rentals were tendered but was refused by stating that the receipt book was
not available—No attempt made by tenant for depositing the same before the Court—
No material to suggest that rent was offered through money order—Tenant committed
wilful default—From the commencement of R.C. O.P. till the end of appeal proceedings
tenant was not regular is making payment at any point of time—No interference
warranted—Tenant running the shop for more than three decades. Reasonable time
granted for vacating the premises and handing over the premises to the landlord.
(Paras 6 to 8)
Counsel.—Mr. P. Senthurpandian, for the petitioner; Mr. T. R. Rajaaraman, for the
respondent .
JUDGMENT
M. CHOCKALINGAM, J.—Challenging an order of the Rent Control Appellate
Authority, Vellore made in R.C.A.No.6 of 2001, affirming the order of the learned Rent
Controller of the said place, passing an order of eviction in R.C.O.P.No.43 of 1996 on the
ground of wilful default, this civil revision petition has been brought forth by the revision
petitioner/tenant.
2. Heard the learned counsel for the revision petitioner and also the learned counsel for
the respondent.
3. Admittedly, the respondent/landlord came forward with a petition under Section
10(2)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, seeking an order
of eviction on the ground of wilful default, alleging that the revision petitioner is the tenant in
the premises belonged to the landlord for a monthly rental of Rs.300/-; that there was due
from September, 1995 to November, 1995 and thus, he has committed wilful default; that
despite a demand made, the rental was not paid and hence, the landlord has filed the petition
for eviction. The said petition was contested by the tenant/revision petitioner herein, stating
that he has been making payment all along; that in the first week of October, 1995, the rental
for the month of September, 1995 was tendered and equally, the rental for the month of
October, 1995 was tendered in the first week of November, 1995; that on both the occasions,
it was informed by the clerk of the landlord that the receipt book was not available and hence,
he could not make the payment; that he sent two months rental by way of money order, but it
was refused; that when there was notice issued by the landlord through his counsel, all the
four months rental were sent by way of demand draft and thus, on the date of filing of the
petition, there was no due and hence, the petition was to be dismissed. On enquiry, the
learned Rent Controller passed an order of eviction holding that there was wilful default on
the part of the revision petitioner/tenant. Aggrieved the tenant took it on appeal before the
appellate forum and the appellate forum has also affirmed the order of the learned Rent
Controller and hence, this revision petition has been brought forth before this Court.
4. Advancing his arguments on behalf of the revision petitioner/tenant, the learned
counsel would submit that in the instant case, the agreed rental was Rs.300/-; that the tenant
has also been making the rental regularly and there was no irregularity at any point of time;
that the rental due, even according to the petitioner, was from September, 1995 to November,
1995; that once there was a demand made by way of notice through the counsel, the amounts
were actually paid by way of demand draft for a period of four months, including
December, 1995 along with reply notice and that on the date of filing of the petition, there
was no rental arrears at all. The learned counsel would further add that in the instant case, all
along the period, the rental has been paid and there was no default much less wilful default,
warranting eviction and hence, the order of both the authorities below have got to be set
aside.
5. Heard the learned counsel for the respondent on the above contentions.
6. After careful consideration of the rival submissions made and scrutiny of the
materials available, the Court is unable to agree with the revision petitioner/tenant.
Admittedly, the revision petitioner is the tenant under the respondent/landlord in respect of
the premises in question by making payment of Rs.300/- per month. According to the
revision petitioner, there was due from the month of September, 1995 to November, 1995.
What was all contended by the tenant before the Courts below and equally here also was
that when the rentals were tendered, it was not received, stating that the receipt book was not
available. If to be so, an application could have been made by the tenant before the Court for
depositing the same, but not done so. In the counter, it has been specifically averred that for
the months of September, 1995 and October, 1995, the rentals were sent through money
order and it was refused, but no materials are placed before the Court to show that any
amount was sent by way of money order. Thus, it would be indicative of the fact that it was a
tissue of falsehood and it is also not even for a period of three months and thus, the revision
petitioner/tenant has committed wilful default.
7. The added circumstance against the revision petitioner is that from the
commencement of R.C.O.P. till the end of the appeal proceedings, he was not regular in
making payment of rental at any point of time. It could be seen from the order that from
January, 1997 to January, 1999, i.e. for a period of 25 months, the rental was paid in lump
sum and a memo was filed and thus, from the commencement of R.C.O.P. till the end of
appeal proceedings, the tenant was not regular in making payment at any point of time.
Hence, the Court has to necessarily take notice of all the facts also. Under these
circumstances, the Court is of the considered opinion that the orders of the authorities below
have got to be sustained. Accordingly, the civil revision petition fails and the same is
dismissed. No costs.
8. Taking into consideration the fact that the revision petitioner/tenant is running a
shop for more than three decades and he has to find out a suitable accommodation to run his
shop, the Court is of the considered opinion that it is a fit and proper case where reasonable
time has got to be given to the tenant to find out a place. Accordingly, nine months time is
granted to the revision petitioner/tenant for vacating the premises and handing over the
same to the respondent/landlord. Till that time, the revision petitioner/tenant is directed to
make payment as per the fair rent fixed by the authority below. He is also directed to file an
undertaking affidavit to that effect within a period of two weeks from the date of receipt of
copy of this order. Consequently, connected CMP is also dismissed.
Petition dismissed.

[2007 (2) TNCJ 91 (Mad)]

MADRAS HIGH COURT
BEFORE:
P. JYOTHIMANI, J.
N. RAMACHANDRAN .…Appellant
Versus
E. VARADARAJAN AND ANOTHER ...Respondents
[Appeal Suit No. 632 of 2003, and C.M. P. No. 934 of 2007, decided on 4 June, 2007]
th

(A) Civil Procedure Code, 1908—Section 96—Appeal—Against preliminary

decree of partition granting 1/4th share in the suit property to the first plaintiff alone
—Legality of—No appeal filed by second plaintiff—Judgment and decree of trial Court
became final in his respect—Appreciation of evidence—Suit property was not ancestral
in nature—Admission of witness of the plaintiff—No evidence to show that suit
property was purchased from and out of any ancestral nucleus—Once a person has
obtained the 1/4th share in the property under the Ex.A-1 partition deed dated 2.4.1940,
it became his property since he became a divided member of a joint family—Question
of continuation of ancestral nucleus does not arise—Decision of Court below in holding
the suit property as coparcenary property and declaring that N.E. could not have
released the 1/4th share of the first plaintiff validly and the first plaintiff is entitled for
1/4th share in the suit property is totally on wrong appreciation of factual and legal
position—Unsustainable—Set-aside—Appeal allowed. (Paras 11, 12, 13, 16
and 19)
(B) Hindu Succession Act, 1956—Section 20—Applicability of.
(Para 16)
(C) Hindu Succession Act, 1956—Sections 8 and 20—Father—Class I heir—
Entitled to succeed under Section 8 of the Act— Exclusion of grandson in the presence
of father.
(Paras 13 and 14)
(D) Practice and procedure—Release deed—Executed by the father of the first
plaintiff—At the most be a voidable instrument—Can be set aside at the option of the
aggrieved party—Release deed found to be valid by trial Court—Not open to the first
plaintiff to attempt to set aside on the reason of any of the vitiating factors like
misrepresentation, fraud, coercion or undue influence—Suit for partition without
praying for setting aside the release deed is not maintainable.
(Paras 16 to 18)
Case law.—AIR 1979 Mad 1; AIR 1986 SC 1753; 2000 (2) C.T.C, 154; 2001 (2)
C.T.C. 641.
Counsel.—Mr. N.L. Rajah for Mr. Venkatesh Associates, for the appellant; Mr. M.
Thamizhavel & Mr. K. Sekar, for the respondents.
JUDGMENT
P. JYOTHIMANI, J.—The defendant in the Court below is the appellant. The
plaintiffs have filed a suit for partition claiming 1/2 share in the suit property bearing Old
No.2 New No.2/1 and 2/2 Sheruffudin Sehib Street, Choolaimedu, Chennai-24. The suit was
filed on the basis that V.Natesapillai was the Kartha of Hindu undivided family along with
his two sons N.Ethirajan, the father of the first plaintiff and the defendant and the suit
property according to the plaintiffs is the copartionary property. The second plaintiff is the
wife of the said N. Ethirajan. After the death of Natesapillai who died on 05.01.1959 the
coparcenary property devolved by survivorship upon the two sons stated above.
2. According to the plaintiffs, the father of the first plaintiff and the husband of the
second plaintiff, namely, N.Ethirajan is stated to have executed a release deed on 30.12.1972
in respect of his right in the coparcenary property in favour of the defendant and the said
release deed is concocted and invalid. At the time when the said Ethirajan executed the
release deed the second plaintiff was conceived and the child, namely, the first plaintiff
was born on 18.09.1973 and therefore, the first plaintiff was in womb of the mother and
therefore, the father had no right to release the share in favour of his brother, namely, the
defendant. According to the plaintiffs in spite of the said release the said N.Ethirajan has
lived as a coparcenary member in the same property till his death on 16.01.1998 leaving
behind him the plaintiffs as his only legal heirs to succeed to his undivided share in the
coparcenary property and therefore, the release deed is not valid. According to the plaintiffs,
they came to know about the release deed only on 09.09.1998 when the first plaintiff
obtained a certified copy of the release deed from the Sub-Registrar Office,
Kodambakkam, Chennai. The plaintiffs have issued a legal notice to the defendant on
05.10.1998 and by a reply notice dated 20.10.1998 the defendant has refused to comply with
the said demand. According to the plaintiffs, they came to know about the execution of the
release deed by Ethirajan dated 30.12.1972 only on 09.09.1998, the suit came to be filed on
07.09.2001.
3. The case of the defendant in the written statement filed by him was that while it is
admitted that the said Ethirajan and the defendant are the sons of V.Natesapillai, it is denied
that they constituted an undivided family and that the said V.Natesapillai was the kartha of
the family. They also denied that the suit property was a coparcenary property. According to
the defendant, V.Natesapillai died on 15.01.1959 and not on 05.01.1959. According to the
defendant, after the death of V.Natesapillai the property did not fall on his son by
survivorship. The defendant states that V.Natesapillai was working in Burma Railway,
after he returned to India in 1941, he has acquired a land at Sarfudeen Shahib Street,
Chulaimedu, Chennai and put up a construction. Thereafter, in 1942 and 1943 by different
sale deeds he acquired small adjacent bits of lands, all of them combined as Door No.02.
The purchase of the adjacent lands were exclusively from the funds of V.Natesapillai.
According to the defendant, Natesapillai had his wife, two sons and four daughters. In
meeting the expenses for the two daughters marriage he had mortgaged the said property
and he could not clear the same before his death. After his death the said N.Ethirajan and the
defendant along with their mother have celebrated the marriage one of their sisters
Thulasiammal in 1959 by borrowing Rs.3,000/- from Meenachiammal on 29.10.1959. It is to
clear the said amount the said Meenachiammal and also to clear some of the other debts of
V.Natesapillai, by mortgaging the property a further mortgage was created on 03.12.1959,
since the defendant as well as his brother were to perform the marriage of the other sister
Anjalakshmi and also to maintain their mother, the mother and sisters executed release
deed in favour of the brother on 23.11.1959, making the two brothers, namely, the defendant
as well as the said N.Ethirajan as the absolute owners of the immovable property. There
were further mortgage since N.Ethirajan was never doing any job and the defendant
being the Government servant was managing the family out of his income. The brother of
the defendant, N.Ethirajan has executed a release deed in favour of the defendant on
30.12.1972 releasing his right over the Chulaimedu property. Therefore, the defendant has
become the absolute owner of the suit property.
4. It is also the further case of the defendant that the defendant has been in
continuous and uninterrupted possession from 30.12.1972, namely, the date on which the
release deed was executed and in fact thereafter he has mortgaged the property in 1977 as
absolute owner even during the lifetime of N.Ethirajan who was also one of the attesting
witness of the said mortgage deed. Therefore, according to the defendant he is the absolute
owner of the property. While the defendant admits the marriage of his brother N.Ethirajan
with the second plaintiff, it is denied that the first plaintiff was born out the wedlock. The
defendant also would state that the second plaintiff after marriage with his brother has gone
away and did not return and in fact Ethirajan himself has denied that he was responsible for
the pregnancy. Therefore, the defendant denies that the first plaintiff was born to the second
plaintiff through his brother (late) N.Ethirajan. It is also denied that there was any
coparcenary property and the second plaintiff having deserted her husband N.Ethirajan and
by virtue of fact that the N.Ethirajan himself has denied the first plaintiff as his son, the first
plaintiff has no right.
5. It is also denied that the plaintiffs came to know about the release deed only on
09.09.1998 especially when the first plaintiff is stated to have completed 28 years of age. It
is also stated that N.Ethirajan himself was a sickly person and he has frequently undergone
treatment as inpatient and looked after by the defendant as well as his mother during her
lifetime. The plaintiffs never bothered to attend to Ethirajan during the time when he was
alive and suffering. It is based on the said pleadings the parties went to trial. The second
plaintiff was examined as P.W.1 while the first plaintiff as P.W.2 apart from another witness
P.W.3 and the plaintiffs have filed nine documents marked as Ex.A.1 to A.9. On the side of
the defendant, the defendant was examined as D.W.1 apart from another witness D.W.2 and
15 documents were filed and marked as Ex.B.1 to B.15. The Trial Court has framed the
following issues:
(1) Whether V.Natesapillai died on 05.01.1959 as stated by the plaintiffs or he
died on 15.01.1959 as stated by the defendant?
(2) Whether the suit property was enjoyed by the plaintiffs and defendant
as joint family property?
(3) Whether the release deed dated 30.12.1972 executed by N.Ethirajan in
favour of the defendant is valid and binding on the plaintiffs?
(4) Whether the plaintiffs are entitled for 1/2 share?
(5) Whether the plaintiffs are entitled for partition?
(6) To what relief?
6. The Trial Court on appreciation of evidence and documents has found that the suit
property was purchased by the father of the defendant as well as N.Ethirajan, namely,
Natesapillai in parts from 1941 to 1943 under Ex.B-2 to B-4 sale deeds and along with the
properties situated in Alanthur which he has obtained in a partition, he has enjoyed jointly
along with his sons the said Ethirajan, the defendant and his wife and daughters, has come to
a conclusion that it is the joint family property. Further, the trial Court has also found that
the first plaintiff was born to N.Ethirajan through the second plaintiff and merely because the
said Ethirajan and the second plaintiff were living away, there cannot be presumption and
has also come to a conclusion based on records that Ethirajan has admitted that the first
plaintiff was born to him. The trial Court has also found that the first plaintiff was born out
of the wedlock between Ethirajan and the second plaintiff and at the time when he was born
on 18.09.1973 they were living together as joint family enjoying the property situated at
Alanthur obtained by Natesapillai under a partition and also the suit property purchased by
him jointly and therefore under Section 20 of the Hindu Succession Act, the first plaintiff
would be entitled for a share. The trial Court has further found that Ex.B.11 release deed
executed by N.Ethirajan in favour of the defendant is valid in law and has come to a
conclusion that originally N.Ethirajan and the defendant were having equal share in the
suit property and after the birth of the first plaintiff he is entitled for 1/2 share from Ethirajan
and in respect of the remaining 1/2 share the same should be treated as a release in favour of
the defendant under a released deed and has come to a conclusion that the first plaintiff alone
is entitled for 1/4th share in the property and rejecting the right of the second plaintiff to have
any share in the property. The suit was decreed by passing preliminary decree of partition
granting 1/4th share in the suit property to the first plaintiff alone. It is as against the
said judgment and decree the defendant has filed the present appeal. It is relevant to point
out that the second plaintiff whose claim has been rejected by the Court below has not filed
any appeal and therefore, in respect of the second plaintiff the judgment and decree of the
trial Court has become final.
7. Mr.N.L.Rajah, learned counsel appearing for the appellant would submit that when
the trial Court has categorically found that the release deed executed by N.Ethirajan in favour
of the defendant under Ex.B.11 dated 30.12.1972 is valid in law and has come into effect
which finding has not been challenged by the plaintiffs either by cross-appeal or otherwise, it
is futile on the part of the plaintiffs to question the authority of N.Ethirajan to execute such a
release. That apart it is his contention that there is absolutely no proof to show that the suit
property at Choolaimedu was purchased by Natesapillai on 03.10.1941 based on the income
from the property at Alanthur which is admittedly a piece of vacant land deriving no income
which was ultimately sold only in the year 1960 and in such circumstances it can never even
be presumed that the nucleus for the purchase of the suit property has come from the income
from the Alanthur property or the suit property is a coparcenary property.
8. He would also submit that there is neither pleading of coparcenary nor any
evidence and in fact the witness examined on the plaintiff side has specifically admitted that
the suit property was purchased by Natesapillai out of his own fund. According to him even
if it is admitted to be a coparcenary property the first plaintiff will have no manner of right
when Natesapillai’s sons, namely, the father of the first plaintiff Ethirajan and the first
defendant and their sisters were alive. Therefore, according to the learned counsel for the
appellant the settlement executed by father of the first plaintiff in favour of the defendant is
valid in law. He would further submit that even assuming otherwise such document, namely
release deed marked as Ex.B-11 can be deemed to be voidable in which event unless the said
document is set aside in the manner known law, the present suit for partition is not
maintainable. To substantiate his contention he would also rely upon the various judgments
reported in AIR 1979 Mad 1, AIR 1986 SC 1753, 2000 (2) CTC 154 and 2001(2) CTC 641.
9. On the other hand, it is the contention of the learned counsel for the respondent
that evidence of P.W.2, P.W.3 and even defendant witnesses prove the ancestral nucleus of
the suit property lies in the property obtained by Natesapillai under the partition dated
03.04.1940. He would also rely upon the provisions of the Hindu Succession Act, especially
Section 20 to show that the first plaintiff who was in the womb of the mother namely, the
second plaintiff, at the time when the release deed was executed by his father N.Ehirajan and
therefore, such document will become invalid and there is no necessity for him to pray for
setting aside the said document, since the said document can be simply ignored as invalid.
10. On hearing the learned counsel for the appellant and respondent and after
referring to the judgment of the trial Court and various documents. The point that arise for
consideration in this case is Whether the judgment and decree of the Trial Court in
granting 1/4th share in the suit property to the first plaintiff is valid and passed based on the
proper appreciation of facts and law by the Court below and as to whether it requires
interference by this Court.
11. While the relationship between the parties are admitted, a reference to Ex.A.1
dated 02.04.1940 shows it is a partition deed entered between the sons of Varadapillai
including the father of the defendant and grand father of the first plaintiff Natesapillai, apart
from other co-sharers in which the said Natesapillai was allotted the B Schedule which is the
property situated in Alanthur with measurement of North to South 19 1/2 ft. and East to
West 120 ft. The said Natesapillai has purchased the suit property under a registered sale
deed dated 03.10.1941 marked as Ex.B-2, a reading of which shows that the said purchase
was not made from any ancestral nucleus. On the face of it, it was purchased by
Natesapillai out of his income. While it is admitted that the property obtained by Natesapillai
by way of partition under Ex.A-1 partition deed, was enjoyed by Natesapillai along with his
sons namely, the said Ethirajan as well as the defendant and as admitted by the defendant that
it was after the death of Natesapillai the said property was sold by defendant as well as
Ethirajan in 1960 and in such circumstances, the question is as to whether the suit property
can be treated as an ancestral property having been purchased by Natesapillai under Ex.B-2
on 03.10.1941 out of the income from the property acquired by Natesapillai by partition at
Alanthur under Ex.A-1 dated 02.04.1940. As found by the Trial Court on appreciation of
Ex.B-2 to B-4, the suit property which was purchased in smaller extent earlier and then other
adjacent portions were purchased by Natesapillai subsequently under the said documents
were purchased by Natesapillai. The trial Court has come to a conclusion that only due to the
reason that the suit property, which was purchased by Natesapillai was enjoyed along with
the property obtained by Natesapillai under the partition of the year 1940 at Alanthur and
therefore, it should be presumed to be an ancestral property. Apart from the fact that when
once N.Natesapillai has obtained the 1/4th share in the Alanthur property under Ex.A-1
partition deed dated 02.04.1940 it becomes his property since he became a divided member
of a joint family and therefore, the question of continuation of ancestral nucleus does not
arise. It is not even the case of the plaintiffs that the suit property was purchased from and
out of the income from the property acquired by Natesapillai under partition in 1940 under
Ex.A-1.
12. On the other hand, as correctly pointed out by the learned counsel for the
appellants, one of the witnesses examined on the side of the plaintiffs, namely, P.W.3, one
M.Ganesan who is stated to be closely related to Natesapillai has categorically admitted that
the suit property was purchased as a vacant land by Natesapillai out of his own funds and it is
his individual property and not ancestral property. The specific admission by P.W.3 in the
cross examination as follows:
13. In the face of such clear admission by the witness examined on the side of
the plaintiffs that the suit property was not ancestral in nature and in the absence of any
evidence on the side of the plaintiffs to show that the suit property was purchased by
Natesapillai from and out of any ancestral nucleus, it is not known as to how the trial Court
has come to a conclusion that the suit property is an ancestral property. In this view of the
matter there is no difficulty to come to the conclusion that the finding by the trial Court that
the suit property is an ancestral property is clearly based on the total and improper
appreciation of evidence. Therefore, in the absence of the ancestral nucleus for purchase of
the suit property it only follows that inasmuch as Natesapillai has died intestate on
05.01.1959 and not 15.01.1959 as stated by the plaintiff, as admitted by the learned counsel
for the defendant himself and in such circumstances, at the time of the death of
Natesapillai his wife his two sons namely, Ethirajan and the defendant apart from his
daughters alone were entitled to inherit his properties as class 1 heirs and the first plaintiff
even assuming that he was the son born to the second plaintiff through N.Ethirajan as it is
found by the Court below, he was certainly excluded from claiming the share in the
presence of his father N.Ethirajan, who died on 16.01.1998 as it is seen under Ex.A.3 death
certificate issued by the Corporation of Chennai. Therefore, the first plaintiff’s right arises
only from the right of his father namely, N.Ethirajan and not individually as it can never be
said that the defendant and his brother N.Ethirajan have constituted a coparcenary property as
it is seen on the factual position in this case. Therefore, when N.Ethirajan who was being
the son of Natesapillai, being a class 1 heir entitled to inherit his fathers property along with
his brother the defendant and his mother and sisters is certainly entitled to release his share in
favour of the first defendant.
14. The exclusion of grandson in the presence of the father being the class 1 heir
entitled to succeed under Section 8 of the Hindu Succession Act, has been clearly laid down
by the Full Bench Judgment of this Court rendered in The Additional Commissioner of
Income Tax, Madras-1 v. P.L.Karuppan Chettiar reported in AIR 1979 Mad 1, in the
following words:
“6. The question is whether when succession opens under Section 8, Karuppan
and his son will take the property in the same manner. Clearly, this is not so.
When we search for the relatives mentioned in class I of the schedule, which is
attracted by virtue of Section 8, we find no sons are mentioned at all though the
grandson of a deceased son is mentioned. What would be the effect when such a
grandson comes into the picture need not be dealt with in this case. But where the
son as well as his son are the persons concerned, by applying Section 8, we have to
come to the conclusion that the father alone, namely, Karuppan in this case will
inherit the property to the exclusion of the grandson. This being the effect of the
statutory provision, no interest will accrue to the grandson in the property which
belonged to Palaniappa. Even assuming Palaniappa’s property is ancestral
property in the hands of Karuppan, still because of the effect of the statute,
Karuppan’s son will not have an interest in the property. This is directly
derogatory of the law established according to the principles of the Hindu Law and
this provision in the statute must prevail in view of the unequivocal expression of
the intention in the statue itself which says that to the extent to which
provisions had been made in the statute, those provisions shall override the
established provisions in the texts of Hindu Law. This is what M.H.Beg J, as he
then was, said in the decision in Commr. of Income Tax v. Ram Rakshpal, (1968)
67 ITR 164 (All). Commenting on this, Divan C.J. in Commr. of Income Tax v.
Babubhai Mansukhbhai (1977) 108 ITR 417 at p.420 (Guj) made the following
observations:
‘The Division Bench there held that in view of the provisions of Section 6
and Section 8 of the Hindu Succession Act, the old position no longer
prevailed and the income from assets inherited by a son from his father must be
held to be his individual and not the income of the Hindu undivided family
consisting of himself and his son. Main reliance in support of this conclusion was
placed by the Allahabad High Court on the provisions of Sections 6 and 8 of the
Hindu Succession Act. The Allahabad High Court accepted the principle that if it
had not been for the Hindu Succession Act, on the death of a father whatever was
inherited by his son by way of succession became ancestral property in the son’s
hands and this ancestral property in the hands of the son belonged to the
coparcenary or the joint Hindu family consisting of the son and his own male
issue.’
After discussing the matter at some length, the learned Chief Justice observed at p.422:
‘With respect to the learned Chief Justice of the Allahabad High Court, it is
impossible to read into the words of Section 8 any provision which interferes
with the scheme of Hindu Law as it prevailed prior to the enactment of the Hindu
Succession Act. Neither Section 6 nor Section 8 nor Section 30 affects this
principle of Hindu Law as to in what capacity or in what character the son would
enjoy the property once he received it from his father in succession.’
Proceeding further, the learned Chief Justice, referred to a passage from Mulla’s
Principles of Hindu Law. 14th Edn. edited by S.T.Desai. Illustration (a) at page
849 of the commentary is then extracted and the learned Chief Justice agreed with
the Commentary and the illustration. With very great respect, we are unable to
 agree with the view expressed by the learned Chief Justice. The passage quoted
from the commentary did not deal with the effect of Section 8 of the Act. What
has been illustrated also is the position under the Hindu Law untrammelled by
statutes and it occurs in the commentaries to Section 6 of the Act which deals with
survivorship and the saving by Section 6 of that principle to the extent to which it
had been done. This passage is of no assistance in determining the impact of
Section 8 on the principles of devolution of property on the death on the
principles of inheritance. We have dealt with the effect of Section 8 earlier and it
is clear that here Karuppan alone took the properties of his father Palaniappa which
the latter had obtained in the partition, and irrespective of the question whether it
was ancestral property in the hands of Karuppan or not, he would exclude his son.
Since the existing grandson at the time of the death of the grandfather has been
excluded, we think that an after born son of Karuppan will also not get any interest
which Karuppan inherited from his father. Thus, the principles of Hindu Law are
not applicable. It is impossible to visualise or envisage any Hindu undivided
family in regard to the property which Karuppan got. This is the view that we
have taken in the decision in T.C.No.276 of 1972; (1977 Tax LR 1420) (Mad)
Addl.Commr.of Income Tax Madras v. V.R.A.Manicka Mudaliar to which one of
us was a party. We respectfully agree with the view expressed in that decision
and answer the question referred to us in the affirmative i.e. in favour of the
assessee and against the Department. The Revenue will pay the costs of the
assessee including counsel’s fee of Rs.500.”
That was followed by a decision rendered by this Court by K.P.Sivasubramaniam, J. in
Anjali and 6 others v. P. Jyothimani, Arumugam Chettiar and another reported in 2000 (2)
CTC 154 wherein it was held that mere suit for declaration of title and injunction without
setting aside documents is not maintainable after analysising the various judgments on the
point. The relevant passage of the judgment is:
“6. In support of his submission that there was no necessity to pray for setting
aside the release deed, reliance is placed on the judgment in N.S.Ramaswami, J.
Reported in V. Nataraja Iyer and others v. Arunschalam and others, 1976 (II)
M.L.J. 326. In that case, learned Judge held that with reference to joint family
property, as regards the alienation made by manager, when the minor coparceners
question the alienation, they would not be obliged to pray for setting aside
alienation. Learned counsel also refers the judgment of Full Bench of this Court
stated in the very same judgment in Kandaswami Udayan v. Annamalai Pillai, 51
L.W.11.
7. Per contra, Mr.G.Rajagopalan, learned counsel appearing for the
respondents contends that the transaction is not a void one but only a voidable one,
having regard to the judgement of the Supreme Court reported in Divyadip Singh
and others v. Ram Cachan Mishra and others, JT 1997 (1) S.C.504. Reliance is
placed on the observation that when the natural guardian without the previous
permission of the Court had alienated the property, it was voidable at the instance
of the minor. Therefore, according to the learned counsel, the sale as well as the
release being only voidable and not void, there was an obligation on the part of the
plaintiff to have prayed, to set aside the earlier transaction. He would also rely
upon the judgment of the Full Bench of this Court reported in Mir Ghulam Hussain
Sahib v. Ayesha Bibi and others A.I.R.1941 Mad.481 wherein the Full Bench held
that the transfer by guardian appointed by Court without. Court sanction is
 voidable and not void. It is valid unless set aside at the instance of minors, within
limitation.
8. Reference is also made to another judgment of this Court reported in
Sankaranarayana Pillai and another v. Kandasamia Pillai, 1956 (II) M.L.J. 411.
The Full Bench held in that case that when the minor was co-nominee a party to a
sale deed or others document of alienation by a guardian which he seeks to set
aside, it is not enough for him to merely sue for possession but he must have also
prayed for cancellation of the document and pay due court fee for the said prayer.
9. Therefore, having regard to the declaration of the law by the Supreme Court
holding that the transaction of the present nature was only voidable and not void,
the Courts below have rightly held that the plaintiffs ought to have prayed for
setting aside the release in favour of the defendants.”
15. It is at this juncture relevant to point out that the Trial Court itself has come to a
conclusion that the release deed executed by N.Ethirajan in favour of defendant on
30.12.1972 under Ex.B-11 is valid in law and has been acted upon and the said finding has
become final and has not been questioned by the plaintiffs anywhere. This point has been
lost sight by the learned Trial Judge. When that is the position that when the father of the
first plaintiff N. Ethirajan was alive even at the time when the first plaintiff was born which
was on 18.09.1973 especially in the circumstance that it is not a coparcenary property, there
is no question of application of Section 20 of the Hindu Succession Act, 1956. The said
section applies only in cases where a person having right of inheritance under a coparcenary
property who dies when his child was in the womb of his mother, that child who born
subsequently, after the death of the intestate father will have the same right of the father. The
said Section 20 runs as follows:
“20. Right of child in womb.—A child who was in the womb at the time of the
death of an intestate and who is subsequently born alive shall have the same
right to inherit to the intestate as if he or she had been born before the death of the
intestate, and the inheritance shall be deemed to vest in such a case with effect
from the date of the death of the intestate.”
16. In the present case it is not as if the father of the first plaintiff namely, N.Ethirajan
died when the first plaintiff was in the womb of the mother. On the other hand, at the time of
the birth of the first plaintiff which was on 18.09.1973 Ethirajan was alive who died much
later namely on 16.01.1998. Therefore, there is no question of applicability of Section 20
of the Hindu Succession Act, 1956 to the facts and circumstances of this case. Therefore, the
finding of the Court below by placing reliance on Section 20 of the Hindu Succession Act,
1956 by treating the suit property not only a coparcenary property but also holding that at the
time when the said N.Ethirajan has executed a release deed in favour of defendant on
30.12.1972 the first plaintiff who was born on 18.09.1973 should have been presumed to be
in the womb of the mother and therefore, the release deed executed by the first plaintiff’s
father in favour of the defendant to the extent of the share of the first plaintiff is invalid
cannot be the correct position of law. There are more than one reason for arriving at such
conclusion, first of all there is absolutely no proof to show that the suit property was a
coparcenary property. Secondly even assuming it is the joint property enjoyed by
N.Ethirajan, defendant and their sisters jointly and Natesapillai died intestate, it is only the
brothers and sisters and wife of the Natesapillai as class 1 heirs who can have the right of
inheritance and the first plaintiff can have no right at all since Section 20 of the Hindu
Succession Act has no application. In such circumstances, the finding by the Court
below that the release deed executed by N.Ethirajan under Ex.B-11 in favour of the defendant
to the extent of 1/4th share of the first plaintiff is not valid, is not based on the correct
appreciation of fact and legal position, especially in the circumstances, that the genuiness
and legality of Ex.B-11 release deed has been held in affirmation by the Trial Court which
has become final between the parties.
17. One other question that arises for consideration in this case is even assuming that
the release deed executed by the father of first plaintiff in favour of the defendant under
Ex.B-11 is not binding on the first plaintiff it can at the most be a voidable instrument which
can be set aside at the option of the aggrieved party. The question now that arises is as to
whether the plaintiffs have taken any steps to set aside that document at all. Apart from the
fact that this can only be an academic question since the trial Court has already come to a
conclusion that Ex.B.11 release deed is valid in law and therefore, it is not open to the first
plaintiff to attempt to set aside on the reason of any the vitiating factors like
misrepresentation, fraud, coercion or undue influence, the pleading of the plaintiffs are
otherwise, the release deed has never been assailed by the plaintiffs on the vitiating factors.
18. Even though this is purely of academic in nature as correctly pointed out by
the learned counsel for the appellant that the suit for partition without praying for setting
aside the release deed is not maintainable.
19. In view of the above said analysis, I have no hesitation to come to the conclusion
that the decision of the Court below in holding the suit property as coparcenary property
and declaring that N.Ethirajan could not have released the 1/4th share of the first plaintiff
validly as per Section 20 of the Hindu Succession Act, 1956 and that the first plaintiff is
entitled for 1/4th share in the suit property is totally on the wrong appreciation of factual
and legal position and in view of the same the judgment and decree of the Court below in
granting a partition decree to the extent of 1/4th share to the first plaintiff is set aside and the
first appeal stands allowed. However, there will be no order as to cost.
Appeal allowed.

[2007 (2) TNCJ 105 (Mad)]

MADRAS HIGH COURT
BEFORE:
P. JYOTHIMANI, J.
GOVINDASWAMY UDAYAR ...Appellant
Versus
ROJAVATHYMEDAKAR AND OTHERS ....Respondents
[Appeal Suit No 973 of 1991, decided on 4 June, 2007]
th

Civil Procedure Code, 1908—Section 96—Appeal—Against judgment and decree

passed in suit for partition—Legality of— Appreciation of evidence—No evidence about
the earlier partition—Joint family status continues—Admission—4 th defendant who was
examined as defence witness—No question of presumption of notional partition—
Judgment and decree passed by trial Court neither suffer from illegality nor from
perversity—No interference warranted—Appeal dismissed—Lapse of 24 years—Trial
Court directed to take up the final decree proceedings. (Paras 14 to 25)
 Case law.—2002 (1) TLNJ 217; AIR 1962 SC 89; AIR 1963 SC 1901; 2006 AIR SCW
5063.
Counsel.— Mr. A. Thiyagarajan & Mr. E. Narayanan, for the appellant; Mrs. Hema
Sampath, S.C. for R. Meenal, for the respondents.
JUDGMENT
P. JYOTHIMANI, J.—The second defendant before the trial Court is the appellant in
this first appeal. Pending the appeal the sole appellant died and his legal representatives have
been impleaded as appellants 2 to 5. The respondents have filed the suit for partition and
allotment of 1/45 and 51/180 shares respectively in respect of A and B Schedule properties
and also for return of jewels to the first and second plaintiffs. A schedule properties consist
of 55 items which are all immovable property while B schedule properties relate to various
moveable goods.
2. The case of the plaintiffs is that the first and second defendants namely,
Poovathu Udayar and Govindasamy Udayar and the husband of the first plaintiff and father
of the plaintiffs 2 to 4 late Gopal Udayar were the sons of Kaliyathu Udyar who died
instate 45 years ago. Kaliyathu Udayar and his sons consisting of a joint family had various
properties enjoyed by his sons commonly without partition. Out of the income from the said
property various other properties were purchased in the name of the second defendant
(appellant herein) and also in the name of the elder member of the family the first
defendant apart from the mother, the third defendant. However, those properties were jointly
enjoyed as joint family properties. In the A Schedule properties, which belonged to the joint
family consisting of the defendants, Gopal Udayar had one-third share. Likewise, in the
movable properties mentioned in B Schedule also Gopal Udayar has one-third share. Gopal
Udayar and the first plaintiff were married on 08.01.1970 at Thirupathi and out of their
wedlock plaintiffs 2 to 4 were born. Gopal Udayar died on 23.06.1981 intestate leaving the
plaintiffs as well as his mother the third defendant as his legal heirs. Therefore, the 2nd and
4th plaintiffs who are the sons of Gopal Udayar have equal right as per the Hindu Law
and in that way they are entitled for one-ninth share in the entire property. In the share,
which the Gopal Udayar is entitled namely, one-ninth share, the plaintiffs as well as the
third defendant are entitled for equal share, namely, each 1/45th share. Therefore, the second
and 4th plaintiffs are entitled for 51/180th share and first and third plaintiffs are entitled for
1/45th share.
3. That apart, the jewels and other materials which were given to the first plaintiff at
the time of her marriage with Gopal Udayar are to be returned. The first defendant Poovathu
Udayar died on 17.10.1985 and the fourth defendant is his wife and 5th defendant is his
daughter and they are the only legal heirs. The first defendant Poovathu Udayar before his
death has executed a Will on 13.10.1985 giving half of his share in favour of second and 4th
defendants namely, his brother and wife respectively and the remaining half was given to the
daughter of the first defendant Alameluammal namely, the 5th defendant with a life estate,
further, stating that if the 5th defendant died without any issues, the property shall go to
plaintiffs 2 and 4 absolutely. The third defendant before her death has executed a Will on
21.08.1986 by which after her lifetime the second and fourth plaintiffs are entitled. In view
of the same the above suit for partition was filed.
4. After the suit apart from the first defendant, the third defendant also died. The
fourth defendant has filed a written statement. While admitting that A & B schedule
properties are joint family properties, it is their case that the first defendant was entitled
for one-third share and after the death of the first defendant, being his legal heirs 4th
and 5th defendants namely, his wife and daughter are entitled. The 4th defendant also denies
the execution of any Will by Poovathu Udayar on 13.10.1985 or by the third defendant on
21.02.1986 giving the some interest in favour of the plaintiffs. According to the 4th
defendant such Will is a forged one.
5. The 5th defendant has also filed a written statement. While admitting that A
Schedule properties are the joint family properties, the 5th defendant also states that there are
various other properties purchased in the name of the daughter-in-law of the second
defendant benami from and out of the income from the joint family properties and those
properties are also to be added. The 5th defendant also admits that B Schedule properties
are the joint family properties. The second defendant in the written statement denies that
the first plaintiff is of unsound mind. He also dispute the certificate issued by the doctor
regarding the unsoundness of the first plaintiff. It is also stated that the first plaintiff has filed
the suit not only on her behalf but also on behalf of her minor children namely, plaintiffs 2 to
4.
6. In the additional written statement filed by the second defendant, the second
defendant denies the Will executed by the first defendant dated 13.10.1985 as not genuine.
He also denies the execution of any Will by the third defendant. It is on the basis of the
above pleadings the parties went on trial.
7. The Trial Court has framed various issues including as to whether the suit is
maintainable, as to whether the A and B Schedule properties are joint family properties,
as to whether the B Schedule properties are available, as to whether it is true that Kaliyathu
Udayar and his brothers have already partitioned themselves and as to whether the
particulars about the property given in the plaint are correct?
8. It is seen that the third plaintiff minor has filed a suit in O.S.No.20 of 1985 through
his uncle Venkadesa Udayar for the same relief of partition. Even though both the suits were
tried together there is no appeal in respect of the decision rendered in O.S.No.20 of 1985. On
the side of the plaintiffs eight witnesses were examined and two documents were marked as
Ex.A-1 and A-2. On the side of the defendants apart from the second defendant and third
defendant who were examined as D.W.1 and D.W.2 the fourth defendant was also examined
as D.W.4 and 117 documents were marked as Ex.B-1 to B-117. That apart, the
Commissioner’s report in O.S.No.20 of 1985 is marked as a Court document.
9. The trial Court having found that the contention raised by the second defendant that
there has been a partition already between his father Kaliyathu Udayar and his brothers
Rangappa Udayar and Nangoore Udayar and Kesava Udayar, as per the partition deed dated
29.07.1924 marked as Ex.B-9 and family of Rangappa Udayar have also entered a further
partition on 29.08.1924 marked as Ex.B-10 and the said two documents do not contain the
signatures of the brothers of the second defendant and having come to a conclusion that the
said documents were created and therefore, there was no earlier partition in the family and
has ultimately having found that the properties in O.S.No.86 of 83 as well as O.S.No.20 of
1985 are one and the same and parties are also one and the same granted a decree in respect
of A schedule alone, dismissing the suit in respect of B schedule property. It was as against
the said judgment and decree of the trial Court the second defendant has filed the present
appeal.
10. Mr.A.Thiyagarajan, learned counsel appearing for the appellant would submit
that Kesava Udayar has settled his share to the first and the second defendants under a deed
of settlement executed by him on 12.02.1927 marked as Ex.B.11 and another brother of
Kaliyathu Udayar namely, Rangappa Udayar has given the share of his property in favour of
his wife Veruthammbal under a Will executed by him dated 28.09.1929 marked as Ex.B.13
and therefore, according to him there was a partition between the said Kaliyathu Udayar
along with his brothers and no property was given to Gopal Udayar. While the learned
counsel would admit that it is true that B.9 and B.10 was not signed by the brothers of the
second defendant the Panchayathaars have signed and in addition to that the wordings
of Ex.B.11 in which Kesava Udayar has settled his share to first and second defendants has
specifically stated that the property which was given to him as a share and therefore, it should
be presumed that there was a partition and therefore, according to him Ex.B-9 and B-10
were acted upon. He would also submit that various properties which were purchased in
the name of the second defendant Govindasamy Udayar as seen in Ex.B-22, B-23, B-24,
B-25, B-26, B-27 and etc., were not purchased from and out of the income from the joint
family funds. Inasmuch as there was an earlier partition between the brothers of Kaliyathu
Udayar the parties cannot claim beyond the share of Kaliyathu Udayar.
11. On the other hand, Mrs.Hema Sampath, learned senior counsel appearing for the
respondents would submit that in fact the first plaintiff was a person of unsound mind and the
court has appointed a guardian. She would also submit that the written statement of the
4th defendant who is the wife of the first defendant shows that she is entitled for one third
share along with her daughter the 5th defendant. It is further pointed out by the learned
senior counsel that the 5th defendant in addition would say that there are some other
properties which are also to be added for the purpose of partition. She would also refer to the
admission made by the second defendant as D.W.1 as a witness saying that he has
purchased the property from and out of the various properties of the family as well as the
business and he has no objection for giving a share to the plaintiff in respect of the ancestral
property. She would also submit that the properties purchased by the second defendant in the
name of his wife Savithri who is the second appellant in the appeal as seen in Ex.B-18 to B-
21 are all the purchases made subsequent to the suit. She would also submit that the second
defendant has even gone to the extent of saying in evidence that there was a partition between
him and Gopal Udayar 20 years ago which was not even pleaded.
12. She would also refer to the evidence of the 4th defendant as D.W.2 stating that the
first defendant was only doing agricultural operations and the second defendant was
managing the properties and therefore, the properties were purchased in the name of the first
and second defendants and they were purchased from and out of the income from the joint
family properties. She would also submit that it is not even the pleading of the second
defendant that the properties belong to him and purchased out of his separate income. She
would also submit that the legal heirs of the first defendant namely, 4th and 5th defendants
who have contested the case and in effect supported the plaintiff’s case have not been joined
as parties in this appeal. She would rely upon the judgment reported in 2002 (1) TLNJ 217 to
substantiate her contention that non joining of the legal heirs of the first defendant namely,
4th and 5th defendants in the appeal is fatal to the case of the appellant.
13. After hearing the learned counsel for the appellant as also the learned senior
counsel for the respondents and having gone through the judgment of the Trial Court as well
as various documents, the points that arises for consideration in this appeal is as to
whether the judgment and decree of the Trial Court holding that the plaintiffs are entitled for
the share as claimed by them in the plaint are wrong and perverse and deserve to be
interfered by this Court.
14. In this case as it is correctly found by the learned Trial Judge the contesting party
is the second defendant in the suit. It was the specific case of the second defendant that there
has been an earlier partition placing reliance on Ex.B-9 and B-10 dated 29.07.1924 and
29.08.1924 and therefore, the present suit for partition is not maintainable. It is also admitted
by the learned counsel appearing for the appellant that Ex.B-9 and B-10 does not contain the
signature of parties but it is the decision arrived at the Panchayat and therefore, it should be
taken as a partition. In this regard, it is relevant to point out that originally there was one
Mari Udayar who had four sons namely, Nangoore Udayar, Rangappa Udayar, Kaliyathu
Udayar and Kesava Udayar. It is Kaliyathu Udayar whose wife Ponnammal is the third
defendant and the other two sons Poovathu Udayar and Govindasamy Udayar, first and
second defendants respectively. Kaliyathu Udayar had another son Gopal Udayar which
fact is admitted and it is Gopal Udayar’s wife who is the first plaintiff and other plaintiffs
are his sons and daughter. Since the first defendant Poovathu Udayar died the fourth and
fifth defendants, wife and daughter respectively are his legal heirs.
15. Even assuming that the contention of the second defendant is admitted that there
was a partition under Ex.B-9 and B-10 a reference to the said documents show that they are
stated to be the partition deed between Nangoore Udayar, Rangappa Udayar, Kaliyathu
Udayar and Kesava Udayar and there has been a further partition in the family of Rangappa
Udayar. The Court has clearly found as admitted by the parties that Ex.B-9 and B-10 has not
contained any signature, the Court has further found that even under Ex.B-10 there was no
witnesses signed. That apart, as correctly found by the Court below the second defendant has
not produced any documents to show that Kaliyathu Udayar and his brothers have
separately enjoyed the properties by having separate pattas. In fact the second defendant as
D.W.1 has stated as if there was an earlier arrangement between Kaliyathu Udayar and his
brothers and pursuant to that Ex.B-9 and B-10 were entered and in the absence of any
such previous document and especially in the circumstances that Ext.B-9 and B-10 have not
contained the signatures of Nangoore Udayar, Rangppa Udayar and Kaliyathu Udayar, the
Court has correctly come to a conclusion that there was no earlier partition among the
brothers of Kaliyathu Udayar and himself.
16. It is relevant to point out that if really the partition was true, the first defendant
would have stated in the written statement about that. On the other hand, it is admitted by the
second defendant himself that after the death of the father Kaliyathu Udayar he has
been maintaining the properties and as correctly found by the Court below all the subsequent
purchases made by the second defendant were during the time when the second defendant
was maintaining the properties on behalf of the family. In this regard it is relevant to point
out the evidence of the 4th defendant Chitrammal @ Ponnammal as D.W.3. She says
17. It is also relevant to point out that even the second defendant who was
examined as D.W.1 has admitted that the voters list contains the name of the plaintiff in the
house wherein the second defendant is living namely, door No.21 as follows:
18. That in respect of ancestral property he is prepared to give share to the plaintiff as
follows:
19. He has stated subsequently that 20 years ago there was a partition between him
and Gopal Udayar who is the husband and father respectively of first plaintiff and other
plaintiffs as follows:
20. He has specifically admitted that he has not stated the same in the pleadings. On
the specific admission of the second defendant that he is prepared to give share from the
ancestral properties to the plaintiffs, there is no difficulty to come to the conclusion
that the stand taken by the second defendant that there was an earlier partition in the joint
family has been shattered into pieces by his own evidence which shows that there is in
existence the joint family status.
21. There is one other aspect in this case, it is seen in the written statement filed by the
fourth and fifth defendants who were the wife and daughter respectively of the first defendant
who died. It is specifically stated that they are entitled for one-third share to which the first
defendant was entitled and for that the fifth defendant has paid the court fee and fourth
defendant has agreed to pay the same. The trial Court while granting decree in respect of A
Schedule property for the plaintiff by holding that the properties are joint family
properties and the parties are entitled and therefore, it goes without saying that the said fourth
and fifth defendants are entitled to the share which they have claimed in the written
statement. In such circumstances, the second defendant while filing the appeal has not
chosen to include the fourth and fifth defendants in the appeal. Therefore, it is contended by
the learned senior counsel for the respondents that it should be taken that the judgment by
the trial Court should be treated as final as far as the fourth and fifth defendants are
concerned who have claimed 1/3rd share as it was made by the plaintiffs themselves whose
claim has been accepted in respect of A Schedule properties and in such circumstances, the
appeal without impleading the fourth and fifth defendants deserves to be dismissed.
22. In support of her contention she would also rely upon the judgment of the Division
Bench of this Court in Atika Begum & others v. Haji A.A.M.Abdulla and others reported in
2002 (1) TLNJ 217. That was the case wherein in respect of the some of the respondents
the appeal was already dismissed and in such circumstances as against the single
decree for partition whether the appeal can be taken in respect of the other respondents and in
that situation the Division Bench has held that since the partition decree happen to be a joint
one, the appeal was dismissed in toto. That was also the law laid down by the Honble
Supreme Court in State of Punjab v. Nathuram reported in AIR 1962 SC 89 and also in
Rameshwar Prasad and others v. Shambehari Lal Jagannath and another reported in
AIR 1963 SC 1901 while dealing with Order XLI, Rule 4 of Code of Civil Procedure.
23. On the factual position as I have stated above that there is absolutely no evidence
as correctly found by the trial Court about the earlier partition and on the other hand the
evidence of D.W.1 itself is clear that joint family status continues, there is no question of
presumption of notional partition as contended by the learned counsel for the appellant
placing reliance on the judgment of the Honble Apex Court rendered in Anar Devi and others
v. Parameshwari Devi and others reported in 2006 AIR SCW 5063. Therefore, the said
judgment is not applicable to the facts and circumstances of the present case.
24. In view of the above said facts, I am of the considered view that there is absolutely
no illegality or perversity in the judgment and decree of the trial Court and it cannot be
termed that the trial Court judgment is wrong. In these circumstances, the first appeal fails
and the same is dismissed, confirming the judgment and decree dated 24.09.1991 passed in
O.S.No.86 of 1983 with cost.
25. It is made clear that since the matter is relating to 1983 more than 24 years have
lapsed, the trial Court is directed to take up the final decree proceedings if the same are
pending and dispose off the same expeditiously taking into consideration that this is one of
the oldest cases and giving priority to the same.
 Appeal dismissed.

[2007 (2) TNCJ 113 (Mad)]

MADRAS HIGH COURT
BEFORE:
P. JYOTHIMANI, J.
BYRAGI MUTT SRI VENKATESA PERUMAL
TEMPLE REP. BY ITS MANAGER ...Appellant
Versus
INDIRANI AMMAL AND 15 OTHERS ...Respondents
[Appeal Suit No. 116 of 2005, and C.M. P. No. 1465 of 2005, decided on 4 June, 2007]
th

Civil Procedure Code, 1908—Section 96—Appeal—Against the dismissal of suit

for possession—Legality of—Appreciation of evidence—Settlement deed dated
10.6.1958—Interpretation of— Under settlement deed the settlor has in fact made his
daughter and widowed daughter-in-law as beneficiaries—No specific stipulation to the
children born to daughter through B.N. the son-in-law—Under settlement rights are
given to the issues of B.N. also— Property vested with B.N. along with his second wife
first defendant after the death of the daughter of the settlor—Second defendant
was born to B.N as his issue—No specific bequeathal in favour of the plaintiff temple
except in the right for the purpose of receiving certain amount for the conduct of some
of the festival of the plaintiff temple—Conclusion arrived at by the trial Court that suit
property has not vested with the temple is with proper reasoning—Neither
perverse nor wrong—Children born through void and voidable marriage are having
legitimate right to inherit the properties of their parents—No interference warranted—
Appeal dismissed. (Paras 12 to 22)
Counsel.—Mr. V. Srinivasan, Mr. S. Kalyanaraman, for the appellant; Mr. T. R.
Rajagopalan S.C. for B. Sankaralingam, for the respondents 1, 2, 4, 8, 10, 11 and 13.
JUDGMENT
P. JYOTHIMANI, J.—The unsuccessful plaintiff in the Court below is the appellant.
The plaintiff filed the suit for possession of the house property bearing old door No.23 new
door No.50 General Muthiah Mudali Street, Chennai-79. The relevant averments in the
plaint are that the said property originally belonged to one M.Devarajulu Naidu who executed
a settlement deed on 10.06.1958, giving life estate to his only daughter Loganayagiammal
with reference to the ground floor consisting of one Koodam and two rooms with right to
her to let it out and after her life time to be succeeded by her husband C.V.Balram Naidu who
was also given life estate and after his death the property was directed to be vested with the
plaintiff temple if there was no issue through Loganayagiammal. Under a said settlement
deed the settlor has given right to the trustees of the plaintiff to take possession on the
death of Balram Naidu and Loganayagiammal without issues. Under the said settlement deed
the settlor has given life estate in respect of one koodam and two rooms on the north side of
the second yard of the upstairs to Kausalyaammal, his daughter-in-law with a right of letting
out to third parties and receiving rent and after her life time to be given to the plaintiff’s
temple. The trustees of the plaintiff temple are also empowered to take possession. In respect
of the remaining portions, as per the settlement the same has to be let out to tenants and out
of the income,
(A) various amounts are to be paid in respect of taxes to the Corporation and local
bodies apart from maintaining the same by effecting repairs etc.,
(B) Rs.100 was to be paid to the beneficiary Loganayagiammal for her maintenance
and the amount is to be paid to her husband C.V.Balram Naidu after her death.
On the death of both of them without issues the same has to be given to the plaintiff
temple. Likewise, an amount of Rs.100/- was directed to be given the other beneficiary
Kausalyaammal for her maintenance and after her lifetime to the temple. In respect of the
remaining rental income a half of the amount to be utilized for conducting yearly
uthasavam of the plaintiff temple in the presence of family trustees and the remaining to be
given to the Hindu Theological High School for midmeals cloths, etc.
2. According to the plaintiff, as per the deed of settlement there was no right of
alienation to the beneficiaries. The settlor has appointed the trustees of the plaintiff mutT
apart from V.R.Pandurangan and C.V.Balrama Naidu as the trustees of his estate. The
plaintiff on understanding that both the beneficiaries under the settlement have died apart
from the death of C.V.Balram Naidu who died on 12.04.1988 claimed, the suit property as
belonging to the temple. When a notice was issued to the tenants of the property on behalf of
the manager of the plaintiff on 16.05.1989, the tenants have replied denying the title of the
plaintiff. The first defendant is said to be the wife of C.V.Balram Naidu. According to the
plaintiff, if the daughter of the settlor had no issues through C.V.Balram Naidu, after the
death of the said Loganayagiammal and C.V.Balram Naidu her husband, the property should
go to the temple as per the settlement deed.
3. The plaintiff would state that the first defendant is the second wife of C.V.Balram
Naidu and the said marriage is void as per the Hindu Marriage Act. The second defendant
who is stated to have born to C.V.Balram Naidu through the first defendant cannot have any
right in the property as per the settlement deed. Defendants 3 to 16 are claiming tenancy right
under defendants 1 and 2 who are liable to be evicted. In these circumstances, the present
suit for possession came to be filed. The first defendant filed the written statement, as
adopted by second defendant. That apart the defendants 3 to 11 have filed the written
statement that they are in lawful possession inducted during the lifetime of C.V.Balram
Naidu and the said defendants have also denied the title of the plaintiff and in all other
respects adopt the written statement filed by the first defendant.
4. Likewise, the 14th defendant has also filed the written statement. According to
the 14th defendant, the suit is not maintainable and the plaintiff mutt cannot be
represented by the manager. The suit filed without relief of declaration is not maintainable.
According to the 14th defendant, the intention of the settlor M.Devarajulu Naidu was to
provide benefit to his daughter and widowed daughter-in-law and bequeathed the property
by way of absolute gift and the restrictions are only his pias desire and has no legal
consequence. The settlement deed dated 10.06.1958 is a gift confirming to Sections 122 and
123 of Transfer of Property Act and therefore, it amounts to an absolute settlement. The
restrictions are repugnant to the absolute interest created in favour of Loganayagiammal and
Kausalyaammal. Further, after the death of Loganayagiammal and C.V.Balram Naidu who
took possession the children of Balram Naidu are entitled to the portion absolutely as per the
settlement deed. The property does not vest with the plaintiff temple. The suit is barred for
non-jointer of other children of C.V.Balram Naidu.
 5. The parties went to trial based on the above said pleadings. The trial Court has
framed the various issues, as to whether the settlement deed dated 10.06.1958 was acted
upon, as to whether the suit property was not vested with the plaintiff, as to whether the suit
was barred for non-jointer of necessary parties, as to whether the suit is barred by limitation,
as to whether the manager of the plaintiff has no locus standi to file the suit and as to
whether the plaintiff is entitled to get relief for possession?
6. On the side of the plaintiff the Executive Officer of the plaintiff temple was
examined as P.W.1 and eight documents were marked as Ex.A-1 to A-8. Likewise, on the
side of the defendants, the first defendant was examined as D.W.1 and 33 documents were
marked as Ex.B-1 to B-33. An analysis of the entire evidence and also pleadings and on
appreciation of the fact that even though in the life time of the beneficiary, namely
Loganayagiammal, daughter of the settlor Devarajulu Naidu, the said Balrama Naidu has
married the first defendant as his second wife on permission of the said Loganayagiammal
who is sickly person and unable to bear children and the first defendant has been living
along with the said Devarajulu Naidu and his first wife in the suit property in different
portion collecting rents and the said Balrama Naidu through the first defendant has begotten
children including the first defendant being his son and also on analysis of Ex.A-1 settlement
deed dated 10.06.1958, while coming to the conclusion that the suit is not barred by
limitation, not only because the suit was filed within three years from the date of death of
Balram Naidu but also due to the operation of Section 109 of the HR&C Act and also holding
that the manager of the plaintiff or Executive Officer is competent to file the suit, the Court
below has however, decided the case against the plaintiff in respect of issue No.2 holding that
the property has not vested with the plaintiff. The trial Court has also held that the settlement
deed Ex.A-1 has been acted upon since after the death of Devarajulu Naidu his daughter and
daughter in law took possession along with his son-in-law and arrived at a conclusion that
the plaintiff is not entitled for possession. It is as against the judgment and decree of the
trial Court the plaintiff has filed the present appeal.
7. According to the learned counsel for the appellant, a reading of Ex.A-1 settlement
deed shows that when the daughter of the settlor namely Loganayagiammal and her
husband Balram Naidu died, admittedly Balram Naidu had no children through
Loganayagiammal and by giving effect to intention of the settlor that in the absence of any
children born to them, the property should vest with the plaintiff. The intention of the settlor
was not to give the property to the children of Balram Naidu born through some other person
other than Loganayagiammal the daughter of the settlor. According to him when it is
admitted that during the life time of the first wife Loganayagiammal, Balram Naidu married
the first defendant as his second wife, the marriage becomes void. According to him, at the
time when the settlor Devarajulu Naidu has executed Ex.A.1 settlement deed, namely, on
10.06.1958 Balram Naidu has not married the first defendant and it was only after the death
of Devarajulu Naidu, the settlor who died on 07.10.1960, his son in law Balram Naidu has
married the first defendant and therefore, the second defendant born through the first
defendant should be treated as illegitimate and the second defendant cannot be treated as a
child of Loganayagiammal who died in 1982.
8. The learned counsel would submit that the learned Trial Judge having come to the
conclusion that there was no question of adverse possession and limitation has held that as
per Ex.B-1 to B-33 after death of Devarajulu Naidu, Balram Naidu and Indirani were
paying the public charges in respect of the property and therefore the property has not vested
with the plaintiff which according to the learned counsel for the appellant is a wrong
appreciation of the facts. He would also contend that the trial Court having decided that the
suit is not affected by non-jointer, has wrongly come to the conclusion that the property has
not vested with the plaintiff.
9. On the other hand Mr.T.R.Rajagopalan, learned senior counsel appearing for the
respondents would submit that a reading of Ex.A-1 settlement deed shows that settlement
was not executed in favour of the plaintiff temple who is not a party. The main idea of the
settlor was to give benefit to his daughter and the widowed daughter-in-law. The very
recitals in the document Ex.A-1 shows that the property has been granted in favour of the
daughter and widowed daughter-in-law of the settlor. The condition that after life time the
property should go to the temple is a restrictive covenant, which is invalid. According to the
learned senior counsel when once absolute grant has been given in favour of specified
individuals there was no question of putting any further restriction. The learned senior
counsel would also submit that there is no settlement of specific portion of the property
and Balram Naidu was also given a right and therefore, the children born to him cannot be
denied right and they are also legitimate. According to the learned senior counsel, a
reading of the settlement deed Ex.A-1 shows it is not for the purpose of granting the property
to the temple but doing charity and conferring certain rights and therefore, the beneficiaries
had the power of alienation excepting an obligation to give Rs.100/- to the temple and no
portion of the property has been given to the temple.
10. According to the learned senior counsel even regarding life estate the same was
given in favour of the daughter and daughter-in-law in respect of two portions and there is
nothing about the other portions of the suit property especially that the other portions have
not been given to the temple at all. He would also state that as per the specific clause of
Ex.A-1 it never states that the right must be given to the children born to Balram Naidu and
Loganayagiammal alone. He would refer to Section 16 of the Hindu Marriage Act to show
that even illegitimate children born through a void marriage are entitled for the right in the
property of the father. He would submit that inasmuch as the plaintiff temple is aware of the
grant given in favour of the daughter and daughter-in-law and in the presence of such grant
the condition given in favour of the plaintiff is only restrictive in nature and void.
11. After hearing the learned counsel for the appellant as well as the learned senior
counsel for respondents and going through the judgment of the Trial Court apart from the
pleadings and documents, the points that arises for consideration in this appeal is as to
whether Ex.A-1 dated 10.06.1958 confers any right on the plaintiff at all.
12. As I have narrated earlier, the trial Court has come to a conclusion correctly that
the suit is not barred for non-jointer of necessary parties or hit by limitation nor not
maintainable due to the want of the locus standi to the manager of the plaintiff to file the suit.
But the trial Court has arrived at a conclusion that Ex.A-1 settlement deed has been acted
upon inasmuch as after the death of the settlor Devarajulu Naidu, her daughter
Loganayagiammal and the daughter in law Kausalya took possession of the portion of the
properties mentioned and let it out by receiving rental income and Balram Naidu was also in
possession as appreciated by the learned trial Judge based on the exhibits marked on the side
of the defendants, the said Balram Naidu along with the first defendant have been
paying the various public charges in respect of the suit properties and, therefore, the
settlement has been acted upon.
But the dispute which has culminated by the dismissal of the suit ultimately by the trial
Court revolves around the construction of Ex.A-1 settlement deed. The Trial Court only in
respect of issue No.2 namely:
 “Whether the suit property was not vested with the plaintiff”, has come to the
conclusion that the suit property has not vested with the plaintiff at any point of
time after the death of Devarajulu Naidu. On the fact of it, it is clear that the issue
involved in this case is not as to whether the suit property was vested with the
plaintiff but as to whether the suit property was granted absolutely in favour of the
daughter and daughter-in-law of the settlor, of course with a right on the plaintiff to
have the charities performed from the funds of the suit property to a limited extent.
The trial Court instead of framing issues and considering the question as to
whether the plaintiff temple was having any right at all under Ex.A-1, has
proceeded on the assumption that Devarajulu Naidu along with the first defendant
have been paying the various public charges in respect of the suit property and
therefore, it should be treated that the property has not vested with the
plaintiff however has specifically come to the conclusion that there was no
question of adverse possession in favour of defendants 1 and 2.
13. It is in this regard relevant to consider the terms of Ex.A.1 settlement deed which
has been in fact lost sight of by the learned trial Judge.
14. As rightly pointed out by the learned senior counsel for the respondents, a reading
of Ex.A-1 settlement deed shows that there has been a grant by the settlor Devarajulu Naidu
in favour of his daughter Loganayagiammal and daughter-in-law Kausalya specifically
granting a portion on the ground floor and a portion on the first floor, leaving the other
portions of the suit property as such. It is clear from the settlement deed that no portion of
the properties have been given to the plaintiff temple and, therefore, in that view of the matter
the plaintiff temple was not vested with any right to claim the suit property. In this regard it is
relevant to point out that the trial Court has clearly found with proper reasoning that the
intention of the settlor, namely, Devarajulu Naidu was to confer benefit to his daughter
Loganayagiammal and daughter-in-law Kausalya and his son-in-law Balram Naidu to enjoy
the property as beneficiaries and while giving effect to the intention of the settlor the trial
Court has taken into consideration that Balram Naidu has in fact enjoyed the suit property as
it is seen in the various documents Ex.B-1 to B-33 by paying property taxes, electricity
charges, water and sewerage taxes, etc., of course, along with the first defendant and in that
view of the matter has arrived at a conclusion that there was no vesting of right on the
plaintiff. Even assuming that there is some irregularity in the judgment of the trial Court in
appreciating Ex.A-1 documents in its proper sense, there is no doubt that the reasoning
arrived at by the learned trial Judge in respect of Ex.A-1 and the consequent conclusion are in
accordance with law. In this regard, it is relevant to analyse some of the portions of Ex.A-1
settlement deed before going to the other aspects. Admittedly, the suit property which is a
house and premises consisting of one ground and 577 sq.ft. at General Muthaiya Muthalai
Street, George Town, Chennai, and the said settlor had a son by name M.Gopalakrishnan
who predeceased him and a daughter Loganayagiammal who was married to M.Devarajulu
Naidu. The wife of his predeceased son is Kausalya Ammal. Under the settlement deed the
settlor M.Devarajulu Naidu has in fact made his daughter and widowed daughter-in-law as
beneficiaries. The portion of the settlement deed states as follows:
“Whereas also his daughter Loganayagiammal is sickly and whereas it is the desire
of the settlor that she should be happy even after his life time by looking to her
comforts and medical expenses and whereas also the settlor wishes that his
widowed daughter-in-law Kausalya Ammal who is issueless should also be-
alive want even after his life time and whereas therefore, the settlor wishes to grant
 to the beneficiaries as only dependants of me and of this deed the said house No.23
General Muthaiya Muthalai Street, George Town, Madras so that after him there
may be no disputes with respect to the said house or its inheritance.”
15. Therefore, it is clear as per the said recital, the intention of the settlor was to grant
the entire suit property in favour of his daughter and daughter-in-law. He would further
state that the first beneficiary namely, the daughter Loganayagiammal should live in a portion
which is specifically stated as:
“the front yard that portion of the ground floor consisting of one Kudam and two
rooms”
It is also further stated that she can live in the said place after the death of the settlor or
she may live in any other place by letting out the said portion and receiving the rent. It
further states as follows:
“She may live in the portion allotted to her or if she does not like to live in the said
portion after her father the settlor, she may live anywhere outside by letting out her
portion in the house and receiving the rent therefrom herself provided also that
after her lifetime her husband C.V.Balram Naidu who is also now with the settlor
attending on him shall have the same rights as his wife in the house in the matter of
living and maintenance and allowances after the wife till he lives.”
The next clause which relates to C.V.Balram Naidu is important, which says:
“(B) After the said C.V.Balram Naidu so enjoying the property and after his death if
there are no children, the same share shall go to the benefit of the Bairahi
Madam Thiru-vengadam Udayan Sree Vengadeswara Devasthanam No.1 and 2
General Muthaiya Muthalai Street, G.T., Madras as the trustee of the said temple
shall in such an event take possession of the same.”
16. Therefore, the said clause does not specifically stipulate the children born to
Balram Naidu through his daughter Loganay-agiammal. This is relevant because when
Devarajulu Naidu executed the said Ex.A-1 settlement deed which was on 10.06.1958 and he
died on 07.10.1960 as it is seen under Ex.A-3 and on that day of execution of settlement deed
there was no children born to Devarajulu Naidu through Loganayagiammal which was a
known factor to the settlor himself and the settlor has specifically admitted that
Loganayagiammal was a sickly person. Therefore, it cannot be said that the settlor intended
only the children of C.V.Balram Naidu born through Loganayagiammal.
17. Similarly, the settlor has given another portion to his daughter-in-law Kausalya
Ammal, namely: “the koodam and two rooms in the Northern side of the second yard of the
upstairs” stating that she can live there or let out the same as it is stated earlier in respect
of the other beneficiary and after her life time to the plaintiff.
18. The next paragraph of the settlement deed is important which relates to the
remaining portions other than those which were given for living of his daughter and
daughter-in-law, stating that in respect of the other portion the same shall be let out to tenants
and income to be divided after paying all the public charges and paying Rs.100/- as
maintenance to his daughter Loganayagiammal and after her to her husband C.V.Balrama
Naidu for his maintenance and after him if he dies issue less the same shall go to the benefit
of the temple in the following words:
 “(D) The rest of the house shall be let out to tenants and income so got shall be
divided, after paying the taxes and rates payable to the Corporation and other
local bodies and for the cost of the repairs, etc., that may from time to time be
required to maintain the said house, Rs.100/- shall be used for paying the first
beneficiary Loganayagiammal for her maintenance and after her to her husband
C.V.Balram Naidu for his maintenance as noted in para above and after him if
he dies issueless the same shall go to the benefit of Bairahi Madam
Thiruvengadam Udayan Sree Vengadeswara Devasthanam temple.”
19. Likewise, the daughter-in-law is also given Rs.100/- on the same condition. That
apart, it is stated by the settlor that the remaining rent received from the other portions of
the house, other than the portions allotted to the beneficiaries shall be used for conducting
yearly uthsavam of the temple. Therefore, an overall reading of the said Ex.A-1 shows that
the basic intention of the settlor was to grant absolutely the portions as mentioned above to
and in favour of his daughter and daughter-in-law and apart from those portions there are
other portions from which the rental income were directed to be received and shared in
proportion between them and that apart using a portion for running uthsavam in the temple.
Nowhere in the document Ex.A-1 any right has been vested on the plaintiff temple in respect
of the remaining portions of the property which are admittedly available as it is seen in the
recitals of the document Ex.A-1 itself. In such circumstances as rightly pointed out by the
learned senior counsel for the respondents, the plaintiff temple has no right of possession
since the settlor after granting to his daughter and daughter-in-law an absolute right in respect
of the specified portions cannot restrict their rights. Further, a reading of the various portions
of Ex.A-1 shows that the rights are given to the issues of Balram Naidu also. It is on the
basis of this factual position, the property has vested with Balram Naidu along with the
first defendant after the death of Loganayagiammal and Kausalya Ammal and the said
Balram Naidu had been enjoying along with the first defendant and it is not in dispute that
the second defendant was born to Balram Naidu as his issue and in such circumstances, there
is no question of possession to the plaintiff since there is no specific bequeathal in favour of
the plaintiff temple except in the right for the purpose of receiving certain amount for the
conduct of some of the festival of the plaintiff temple.
20. In view of the same, I am of the considered view that even though this aspect of
Ex.A-1 has not been appreciated in a proper sense and in that view of the matter there is
irregularity or defect in the judgment of the Court below but the conclusion arrived at on the
basis of evidence and document Ex.A-1 that the suit property has not vested with the plaintiff
temple is with proper reasoning and cannot be treated as either perverse or wrong and there is
no necessity for a fresh decision on the line discussed above since the contents of the
document Ex.A-1 are not in dispute. It is also further relevant to note that as per Section 16
(3) of the Hindu Marriage Act even children born through void and voidable marriage are
having legitimate right to inherit the properties of their parents.
21. In view of the above said facts, the second defendant being the son of Balram
Naidu cannot be said to be illegitimate. Further even assuming that the portions which were
granted to Devarajulu Naidu, namely, the Koodam given to both daughter as well as the
daughter-in-law in respect of which alone the right have been given to the plaintiff temple
after their death the plaintiff cannot be placed in possession, for, in respect of the portions in
occupation of the other defendants who are all tenants, there is absolutely nothing to show
that they have been given to the plaintiff temple.
 22. In view of the above said facts and circumstances of the case, I am of the
considered view that the judgment and decree of the trial Court cannot be said to be wrong or
perverse and the reasoning given is in accordance with the factual and legal position and in
view of the same, the judgment and decree of the Court below dated 23.04.2003 passed in
O.S.No.15712 of 1996 is confirmed and the appeal stands dismissed. However, considering
the circumstances of the case, there will be no order as to cost.
Appeal dismissed.

[2007 (2) TNCJ 124 (Mad)]

MADRAS HIGH COURT
BEFORE:
P. JYOTHIMANI, J.
KARUPPANNA UDAYAR AND ANOTHER ....Appellants
Versus
MUTHUSAMY AND OTHERS ...Respondents
[Appeal Suit No 1113 of 1993, decided on 4 June, 2007]
th

Civil Procedure Code, 1908—Section 96—Appeal—Against judgment dismissing

the suit for partition of the property— Appreciation of evidence—Earlier suit for
declaration of title and injunction was withdrawn with liberty to file a fresh suit on the
same cause of action—No decision on merits—Partition suit not hit by principles of res
judicata—Document of evidence as well as admission of first plaintiff as PW 1
abundantly makes clear that the properties have already been divided and enjoyed
separately by parties—Earlier partition—Finding recorded—Question for further
partition under the suit does not arise—Conclusion of trial Court that there was
already a partition among the parties and separate possession, no question of fresh
partition arises—Suffers from no illegality or perversity—No interference warranted—
Appeal dismissed. (Paras 11, 13, 18 and 19)
Counsel.—Mr. P. Jagadeesan, for the appellants; Mr. R. Subramaniam for Mr. V.
Krishnan, for respondent 6; No appearance for respondents 2 to 5; and respondents 1, 7 and
8 NDW.
JUDGMENT
P. JYOTHIMANI, J.—The unsuccessful plaintiffs in the Court below are the
appellants. The plaintiffs are the husband and wife. Plaintiffs filed the suit for partition and
separate possession claiming 7/18th share in the suit property, which is the agricultural
punja lands to the extent of 3.31 acres situated in Ammani Kothanoor Village, Salem Taluk.
2. The case of the plaintiffs is that the first plaintiff and the first defendant are brothers
and they are the members of the joint family. According to the plaintiffs, the father of the
first plaintiff and the first defendant, Theerappa Udayar purchased the suit property on
04.12.1945 from one Kulanthapillai, marked as Ex.A-1. He settled one-third undivided share
in the suit property in favour of the plaintiffs on 03.04.1961 marked as Ex.A-4, which is a
registered settlement deed. Another one-third undivided share was sold by Theerappa
Udayar to one Vedaathal on 10.10.1957 marked as Ex. A-2, which according to the parties
contain a clause for reconveyance. The said Ex.A-2 was executed by Theerappa Udayar
along with the first defendant. The first defendant has repurchased the same from Vedathaal
under a sale deed dated 01.10.1964 marked as Ex.A.3, the original of which was marked on
the side of the defendant as Ex.B.1. The first defendant who has purchased the share under
the said Ex.A.3 is stated to have sold the same to the 6th defendant, under a sale deed dated
31.08.1987 marked as Ex.A.5. In respect of the remaining one-third undivided share, the
father of the first plaintiff and first defendant Theerappa Udayar continued to be in
possession till his death which was four years before the filing of the suit, the suit having
been filed on 15.03.1988. The said Theerappa Udayar’s wife predeceased him and defendants
2 to 5 are the daughters of Theerappa Udayar.
3. According to the plaintiffs, the said Theerappa Udayar died leaving behind him the
first plaintiff, first defendant and defendants 2 to 5 as his legal heirs and they are entitled for
equal share in respect of the remaining one-third share of the property which belonged
to Theerappa Udayar. In addition to that as per the settlement deed executed by Theerappa
Udayar in favour of the plaintiffs on 03.04.1961 under Ex.A-4 they are entitled for another
one-third undivided share and therefore, the plaintiffs are entitled totally for 7/18th share in
the suit properties. According to the plaintiffs, the first defendant has not only sold an
undivided one-third share which was repurchased by him from Vedathaal to the 6th
defendant on 31.08.1987 under Ex.A-5 but he has also sold another share to the 6th defendant
for himself and on behalf of defendants 2 to 5 on 07.09.1987 under Ex.A.6, the original of
which was filed on the defendants’ side as Ex.B.3. Since there was no division among the
co-owners at any point of time, according to the plaintiffs, the vendors have no right to
convey any portion with the specific boundaries. The plaintiffs have filed earlier a suit for
declaration in O.S.No.629 of 1987 against defendants 1 to 3 which was subsequently
withdrawn on 04.12.1987, with liberty to file a fresh suit. The request of the plaintiffs to
divide the properties have not been headed to and therefore, they have filed the present suit
for partition. The first defendant remained ex parte.
4. The defendants 2 to 5 have filed a memo before the trial Court giving no objection
for a decree passed as prayed for by the plaintiffs. The defendants 2 to 5 have also paid court-
fee claiming 2/18th share in the suit property. However, it remains the fact that in the suit
they remained ex parte. The 6th defendant, who is the subsequent purchaser from the first
defendant has filed written statement. While the relationship between the plaintiffs and
defendants 1 to 5 are admitted and also while admitting that Theerappa Udayar has settled
one-third share of the property in favour of the plaintiffs on 03.04.1961 under Ex.A-4 and
also admitting that another one-third share measuring 1.10 acres was sold by Theerappa
Udayar in favour of Vedathaal, which was subsequently purchased by the first defendant
and the same was sold to the 6th defendant on 07.09.1987, it is the specific case of the 6th
defendant that the said document under which the 6th defendant has purchased the
property contained a specific division with boundaries. It is also the case of the 6th
defendant that even one-third share given by Theerappa Udayar to the plaintiffs on
03.04.1961 was with boundaries and it was based on the said Ex.A-3 and A-5 sale deeds
dated 01.10.1964 and 31.01.1987, the 6th defendant has taken the specific portion of
1.10 acres. It is the case of the 6th defendant that it is only in respect of the remaining 1.10
acres which was specified and was in possession of Theerappa Udayar on his death, the same
was succeeded equally by the first plaintiff, the first defendant and defendants 2 to 5.
5. According to the 6th defendant he has not only purchased the one-third specified
share from the first defendant which was originally sold by Theerappa Udayar to Vedathaal
and reconveyed in favour of the first defendant under Ex.A.3, he has also purchased the share
of the first defendant and the shares of four daughters, namely, defendants 2 to 5 out of the
remaining one-third share of 1.10 acres left by Theerappa Udayar under a sale deed dated
07.09.1987 marked as Ex.A.6 original of which was marked as Ex.B-3 on the defendant’s
side. Therefore, according to the 6th defendant the said defendant has purchased the specified
portion, while the plaintiffs have been given properties under the settlement deed and put in
possession and therefore, the plaintiffs are not entitled to any partition with respect to 1.10
acres of land. According to the 6th defendant there has been a partition earlier and daughters
of Theerappa Udayar and the first defendant have already sold, their properties in favour of
the 6th defendant, who is in possession. It is also the case of the 6th defendant that the suit is
barred by res judicata, in view of the decision in earlier suit filed by the plaintiffs in
O.S.No.629 of 1987. On the basis of the above said pleadings the parties went to trial. The
first plaintiff was examined as P.W.1 and on the side of the plaintiffs documents Exs.A-1
to A-10 were marked. On the side of the defendant’s since defendants 1, 7 and 8 have
remained ex parte and defendants 2 to 5 having filed a memo as stated above, have not
chosen to appear and therefore they were set ex parte only the 6th defendant has appeared
and he was examined as D.W.1 apart from another witness on his side as D.W.2 and
documents B-1 to B-10 were marked on the side of the 6th defendant.
6. The trial Court has framed the issues, namely,—
(1) Whether the plaintiffs are entitled for decree for partition?
(2) Whether the decision in O.S.No.629 of 1987 on the file of the District
Munsiff Court, Salem would act as rejudicata for the present suit?
(3) Whether 7 and 8th defendants are necessary parties?
(4) Whether court-fee has been properly paid? and
(5) To what relief the plaintiffs are entitled?
7. The trial Court having analyzed the pleadings, evidence and various documents
relied upon by the parties has concluded that there was already a partition among the parties
and separate possession and therefore, there was no question of fresh partition, apart from
finding that the properties sold to the 6th defendant and settlements made to the plaintiff’s by
Theerappa Udayar were with specific boundaries and also finding that the suit has been filed
by the plaintiffs in collusion with the first plaintiff’s sisters, namely, defendants 2 to 5 and in
view of the same, the suit for partition was dismissed. It is as against the said judgment of
the trial Court, the present appeal is filed by the plaintiffs.
8. Mr.Jagadeesan, learned counsel appearing for the plaintiffs would submit that there
was no division between co-owners at any point of time even during the time when
Theerappa Udayar was living. He would submit that the very fact that the Theerappa
Udayar and the first defendant have sold the undivided one-third share to Vedathaal on
10.10.1957 under Ex.A-2 without specific extent would show that there was no partition.
According to him, the said Ex.A-2 was executed not only by Theerappa Udayar but also by
the first defendant being one of his son, even though it is admitted that under reconveyance
dated 01.10.1964 by which the first defendant has purchased the properties from Vedathaal
along with the first defendant’s father Theerappa Udayar contains specific recitals
regarding 1.10 acres. He would also submit that under the sale deed given in favour of the
6th defendant dated 07.09.1987 which was entered by the first defendant along with his
sisters, namely, defendants 2 to 5 as their power agents marked as Ex.A-6 and the sale
deed in respect of one third share by the first defendant to the 6th defendant dated 31.08.1987
marked as Ex.B-2, they contain false recitals as if there was a division. Therefore, according
to the learned counsel the title of the 6th defendant will be only an undivided share. In
respect of the plea of res judicata it is the contention of the learned counsel for the appellant
that since in the earlier suit in O.S.No.629 of 1987, liberty was given to file a fresh suit and
the said suit was withdrawn without adjudication on 04.12.1987 there was no decision
on merit and therefore, the question of res judicata does not arise.
9. On the other hand, Mr.R.Subramanian, learned counsel appearing for the 6th
respondent would submit that the factum of partition in the family is specifically stated in the
sale deed executed by Theerappa Udayar along with the first defendant to Vedathaal on
10.10.1957 under Ex.A-2. That apart it is his contention that the first plaintiff himself has
admitted that the specific property has been sold to the 6th defendant. It is also his contention
that the various documents marked as Ex.A-5, B-2 and B-3 contain specific boundaries and
the same has been considered by the trial Court and according to the learned counsel since
the 6th defendant is a purchaser, he can only be expected to prima facie be satisfied that
there was a partition in the family and he cannot be expected to prove the partition in the
strict sense especially when in the present case, the partition had been oral. He would also
submit that the suit itself is filed in collusion by the plaintiffs, defendants 2 to 5 who
remained ex parte, but at the same time filed a memo stating as if they are entitled for 2/18th
share, especially through their brother, the first defendant have executed sale deed in respect
of their portion in favour of the 6th defendant under Ex.B-3.
10. After hearing the submission made by the learned counsel for the appellants as
also the respondents and going through the pleadings, evidence and judgment the following
points arises for consideration in this first appeal:
“Whether the plaintiffs are entitled for partition and allotment of 7/18th share has
claimed by them?
Whether the suit is hit by res judicata? and
Whether the judgment of the trial Court is liable to be set aside?”
11. On the point of the plea of res judicata, it is admitted that the first plaintiff has
filed the previous suit in O.S.No.629 of 1987 on the file of the District Court, Salem for a
declaration of title and for permanent injunction against defendants 1 to 3 and the same was
withdrawn on 04.02.1987 with liberty to file a fresh suit on the same cause of action. The
withdrawal was due to the reason that there were some formal defects. Even though the 6th
defendant would state in the written statement that there was an earlier decision in
O.S.No.629 of 1987, it is seen that the first plaintiff has filed I.A.No.3462 of 1987 in
O.S.No.629 of 1987 praying for withdrawal of the suit to file a fresh suit on the same cause
of action under Order XXIII, Rule 1 of Code of Civil Procedure, and the same after giving
notice to the other side stood allowed on 04.12.1987 as it is seen under Ex.A-7. It is also
not the case of the 6th defendant that there was any decision in the suit on merit. In view of
the above said facts, I do not think that the present suit is hit by the principles of res judicata.
12. The next point to be considered is about the eligibility of the plaintiffs to have the
decree for partition and the validity or otherwise of the judgment of the trial Court. A close
reading of the judgment of the trial Court shows that in fact the trial Court has not only
considered every one of the documents filed and also evidence of the parties and has come to
a conclusion that there was an earlier partition among the first plaintiff and the defendants 1
to 5 and that was the decision arrived at based on the construction of the terms of various
documents produced before the Court below. That apart, the trial Court has also considered
the evidence of P.W.1 who himself has admitted that the sale to the 6th defendant was with a
specific portion. A reference to the written statement filed by the 6th defendant, shows
that even though it is true that there is no specific pleading that there was an oral partition
among the first plaintiff and defendants 1 to 5, it is the clear case of the 6th defendant that the
specific properties have been allotted to the plaintiffs by Theerappa Udayar in respect of the
one third share with boundaries. Likewise, it is the specific case of the 6th defendant in the
written statement that in respect of the other one-third share which was sold to Vedathaal, in
the deed of reconveyance under which Vedathaal along with the father of the first defendant
Theerappa Udayar have sold to the first defendant under Ex.A.3 sale deed dated 01.10.1964
and the subsequent sale deed given by the first defendant in favour of the 6th defendant under
Ex.A-5 dated 31.08.1987, specific boundaries have been given and therefore, it is the case of
the 6th defendant that the properties have been specifically allotted to the parties and there
was no question of partition. Based on the said pleadings, if we refer to the documents, as
correctly found by the Court below it can be safely presumed that there has been a prior
partition.
13. At the outset it should be remembered that it is an admitted case that
originally the entire extent of 3.30 acres of punja lands were purchased by Theerappa Udayar
as his absolute property under Ex.A.1 sale deed dated 04.12.1945. Therefore, there is no
dispute that the property absolutely belonged to Theerappa Udayar and it is nobody’s case
that the purchase under Ex.A-1 was from ancestral nucleus. The said Theerappa Udayar
along with one of his sons namely, the first defendant executes a sale deed in favour of
Vedathaal in respect of the one-third share on 10.10.1957 marked as Ex.A.2. The preamble
of the said Ex.A.2 while mentioning about the said Theerappa Udayar and the first defendant
as vendors in the subsequent recital shows clearly that Theerappa Udayar got the property
by way of sale while the first defendant got it by way of partition. In the said Ex.A.2
Theerappa Udayar is stated as a first party and the first defendant is stated as a second party
among the vendors. The relevant portion of Ex.A.2 as found by the trial Court which states
14. A further recital in the said Ex.A.2 shows that even in respect of the coconut
trees there has been a division with the first defendant. In addition to the contents of Ex.A.2
which was executed during the time of the father Theerappa Udayar which gives more credit
to the said document, the first plaintiff as P.W.1 himself admits that pursuant to Ex.A.2
sale deed the purchaser under the said document Vedathaal was given possession. In fact the
first plaintiff further states that till the first defendant got back the property from
Vedathaal in the following words:
15. He would further admit that the portions sold to Vedathaal was the portion given
to the share of his brother the first defendant
16. He would also further admit that the reason for his not joining under Ex.A.2 along
with Theerappa Udayar and the first defendant was that the said portion was not allotted to
him. Further in respect of the other one-third portion which was settled by Theerappa Udayar
in favour of the plaintiffs under Ex.A-4 settlement deed dated 03.04.1961, while in the plaint
the plaintiffs have admitted that Theerappa Udayar has settled one-third undivided share in
the suit property in favour of the plaintiffs on 03.04.1961 under a registered settlement deed,
the first plaintiff in his evidence as P.W.1 has specifically admitted that the said settlement
deed Ex. A-4 contains specific boundaries and pursuant to the settlement deed, the plaintiffs
have been put in possession by Theerappa Udayar in the following words:
17. Likewise, in respect of the remaining one-third share held by Theerappa Udayar
before his death, it is admitted by P.W.1 that after the death of the father his sisters, namely,
defendants 2 to 5 have executed a power of attorney in favour of the first defendant in respect
of their 72 cents of lands stating that the said power also contains the specific extent of the
said 72 cents with boundaries
18. Not only on the basis of the contents of Ex.A.2 and also specific admission of the
first plaintiff as P.W.1 as a witness shows abundantly as found by the Court below that the
properties have already been divided and enjoyed separately by parties. Further, the
documents, namely, Ex.A-5, B-2 and B-3 all contain the schedules with specific boundaries.
In such circumstances, as found by the Court below, it is clear that there has been an earlier
partition and therefore, the question of further partition under the suit does not arise. As to
whether the earlier partition was equal, is not under dispute. There is one other circumstance
as found by the Court below that after the sale, the 6th defendant has been enjoying
specific properties by obtaining patta in her name as it is seen under Ex.B-4 especially
relating to the remaining one-third share held by the father Theerappa Udayar, namely, to the
extent of 1.10 acres to the total extent of 1.65 acres which includes 1.10 which was
purchased by the first defendant from Vedathaal along with Theerappa Udayar and the
remaining 36 and 19 cents which forms part of the share of the daughters, namely, defendants
2 to 5 which was purchased by the 6th defendant under Ex.B-3 dated 07.09.1987. While the
said 1.10 acres sold by the first defendant was purchased under Ex.B-2 dated 31.08.1987
which also contains specific boundaries.
19. In view of the above said facts and circumstances of the case, and on a close
reading of the judgment of the Court below, it is clear that there is absolutely no illegality or
perversity in the judgment of the Court below, which deserves any interference by this
Court. In view of the same, the judgment and decree of the trial Court is confirmed and the
first appeal stands dismissed with cost.
Appeal dismissed.

[2007 (2) TNCJ 133 (SC)]

SUPREME COURT
BEFORE:
S.B. SINHA AND MARKANDEY KATJU, JJ.
SMT. ASS KAUR (DECESSED) BY LRS. ....Appellants
Versus
KARTAR SINGH (DEAD) BY LRS. AND OTHERS ...Respondents
[Civil Appeal No. 12395 of 1996, decided on 18 May, 2007]
th

Hindu Women’s Right to Property Act, 1937—Hindu Succession Act, 1956,

Sections 8 and 4—Punjab Laws Act, 1872—Sections 5 and 7—Inheritance and
succession—Claim of share in property—By deceased co-widow’s daughter—Rightly
rejected by High Court—After death of co-widow the other widow becomes the full
owner of property —Appeal dismissed by Supreme Court.
(Paras 3, 4 and 34)
Important Point
On the death of co-widow the other surviving widow takes the property by
survivorship.
Case law.—AIR 1933 Lah. 69; 22 P.R. 889; AIR 1934 Lah 1; AIR 1937 Lah 468; AIR
1959 SC 1041; AIR 1962 SC 1493; AIR 1951 Punj 239; AIR 1987 P & H 138; AIR 1974 SC
665: (1974) 1 SCC 700; (1983) 3 SCC 376; (1988)2 SCC 126; 2006 (10) Scale 75.
JUDGMENT
S.B. SINHA, J.—A question of some importance in relation to applicability of custom
in the matter of inheritance and succession under the Hindu Women’s Right to Property Act,
1937 falls for our consideration in this appeal which arises out of a judgment and order
dated 21.01.1991 passed by the High Court of Punjab & Haryana in Civil Regular Second
Appeal No. 2166 of 1978.
2. The relationship between the parties is not in dispute, which would appear from the
following genealogical table :
Sohan Singh

Jiwan Singh Hira Singh-Wife Raj Kaur Relu Singh-Wife Sobhi Raj Kaur
[died before
[Wife]
09.12.84] Sham Singh

Nand Singh
[Deft. No. 4 ] Inder Singh Mehar Singh Ass Kaur
[died in 1926] [died in 1937]
[died]
Through L.Rs.

Kartar Gulzar Mukhitiar

Singh Singh Singh
[Deft.No.1] [Deft. No. 2] [Deft. No.3]
[died]
Represented through L.Rs.
3. We are concerned with the branch of Relu Singh. He had two wives, namely,
Sobhi and Raj Kaur. Raj Kaur was originally married to the brother to his brother Hira
Singh, who had died in the year 2001. Relu Singh married to Raj Kaur on the death of
brother under the customary law of the land. Relu Singh died in the year 1907. He was
succeeded by his two wives and two sons Inder Singh and Mehar Singh alias Dalip Singh
and daughter, the appellant. Inder Singh died in the year 1926 and Mehar Singh died in the
year 1937. Sobhi, the first wife of Relu Singh and the mother of Mehar Singh and Inder
Singh, died in the year 1950. Raj Kaur died about five years prior to the institution of the suit
i.e. in the year 1970. Ass Kaur, daughter of Sobhi and sister of Mehar Singh and Inder
Singh claimed share in the property. The defendants-respondents contended that after the
death of her husband Hira Singh, Raj Kaur contracted Karewa marriage with Relu Singh in
accordance with custom. She had a son through Hira Singh. It was urged that under the
Punjab customary laws governing inheritance and succession of Sidhu Jats after the death of
Relu Singh, his two sons and two widows succeeded to his estate. After the death of Inder
Singh and Mehar Singh, their properties were mutated in the name of their mother Sobhi and
their step-mother Raj Kaur. Again purported to be in terms of the rule of survivorship in
accordance with the local and tribal customs her name was mutated after the death of Sobhi.
She remained in exclusive possession of the said property and upon coming into force of the
Hindu Succession Act, 1956, she became the absolute owner thereof. It was also contended
that Sobhi was a limited owner and on her death in the year 1950, Raj Kaur succeeded to her
by rule of survivorship. It was furthermore pleaded that under the customary law, the
appellant herein had no right of succession in preference to the widow.
4. The Courts below while holding that the appellant herein was daughter of Sobhi,
opined that the parties were governed by the customary laws in the matter of inheritance and
succession in terms whereof Raj Kaur succeeded to the estate of Relu Singh after the death
of Sobhi and that her estate was enlarged into full ownership after coming into force of the
Hindu Succession Act. The High Court held :
“Smt. Sobhi died on December 3, 1953 and mutation regarding her share was
made in favour of Smt. Raj Kaur being the co-widow of her late husband Relu
Singh on July 31, 1955 i.e. before coming into force of Hindu Succession Act. In
para 13 of the Rattigan on Customary Law, on the death of a co-widow the other
surviving widow takes the property by survivorship. Revenue Officers rightly
sanctioned the mutation of the estate of Smt. Sobhi in favour of Smt. Raj Kaur, her
co-widow”
5. Keeping in view the importance of the question involved, as also the fact that
nobody appeared on behalf of the respondents, we requested Mr. R. Sundravardan, the
learned senior counsel, to assist us in the matter.
6. Contentions of Mr. Sundravardan and Mrs. Palli are as under :
(i) Relu Singh having only 1/3rd share in the property; the other co-sharers thereof
being Inder Singh and Mehar Singh, on his death his 1/3rd share devolved upon his
two wives jointly as also, his two sons Inder Singh and Mehar Singh.
(ii) On Inder Singh’s death his interest in the property devolved upon Mehar Singh
who became the absolute owner in respect thereof. On Mehar Singh’s death
which took place on 05.06.1937, the properties devolved upon his mother Sobhi.
On Sobhi’s death, in terms of the provisions of the Hindu Law of Inheritance
(Amendment) Act, 1929, (1929 Act) the appellant herein succeeded her as heir of
Relu Singh.
(iii) Sobhi having life interest in the property, on her death the same devolved upon the
appellant herein as daughter of Relu Singh, as a reversioner.
(iv) A step-mother being not an heir or a relation for the purpose of inheritance and
succession; she could not inherit the interest of Inder Singh and Mehar Singh.
(v) Custom prevailing in the family which had been relied upon being a general
custom and not a special or personal custom would be subservient to the 1929 Act
and Hindu Women’s Right to Property Act, 1937 being Act XVIII of 1937.
 (vi) Purported reliance upon the customary law by the Courts below is misplaced.
7. Before embarking on the contentions of the learned counsel, we may notice the
following findings of the Courts below, wherein it is stated that Sidhu Jats were governed by
Zimindara custom :
“There is no dispute that the defendants are Sidhu Jats who are predominantly
agricultural tribe and were governed by agricultural custom in matters of marriage,
succession, alienation, etc. Necessary evidence on the point has been supplied by
all the witnesses of the defendant who were pushed in to prove relationship of
Sham Singh, Raj Kaur and Hira Singh as their son. It may also be observed that
though the defendants denied in the written statement that the suit property was
allotted during consolidation of holding in lieu of the land held by Relu the
learned counsel for the defendants made their statements on 26.3.1977 admitting
this fact. The copies of the revenue record Exhibits D3 to D30, however
establish beyond doubt that the suit land was held by Sohan Singh father of Relu
Singh and Hira Singh and after his death it was inherited by them. It is therefore
the common case of the parties that the suit land was ancestral in the hands of
Relu Singh. Now at the time of the death of Relu Singh about 60 years back these
Sidhu Jats of Muktsar Tehsil who were obviously governed by Zimindara custom,
the daughter was in the presence of sons. No share was to be given to the plaintiff
at the time of the death of her father Relu Singh and this estate was mutated
correctly in the names of Inder Singh and Mehar Singh alias Dalip Singh.
Similarly after the death of Inder Singh the estate was mutated in the name of his
other brother Mehar Singh. However, when Mehar Singh died issueless, the estate
reverted back to his father and Sobha and Raj Kaur succeeded to her not as her
mother or step-mother but as widows of his father”
8. There cannot be any dispute in law that Raj Kaur did not inherit the interest of
Mehar Singh in whom the interest of Inder Singh had also vested upon his death. His interest
under the general law had devolved upon Sobhi. The question, however, which remains
as to whether in a case of this nature the customary law would prevail in regard to the
question as to whether appellant or the said Raj Kaur inherited the interest of Sobhi.
9. Custom is one of the three sources of Hindu Law. Custom may override a statute
subject, of course, to a clear proof of usage.
10. Hindu law recognizes three types of customs : local custom, class custom and
family custom. The Courts below have held that the parties were governed by Zimindara
custom. Whether the said custom is a general custom, or a special custom or for that matter
a family custom has not been stated. The customary law prevailing in the State of Punjab has
received a statutory sanction by reason of the Punjab Laws Act, 1872, Sections 5 and 7
whereof read as under:
“5. Decisions in certain cases to be according to Native law.—In questions
regarding succession, special property of females, betrothal, marriage divorce,
dower, adoption, guardianship, minority, bastardy, family relations, wills, legacies,
gifts, partitions, or any religious usage or institution the rule of decision shall be—
(a) any custom applicable to the parties concerned, which is not contrary to justice,
equity or good conscience, and has not been by this or any other enactment
 altered or abolished, and has not been declared to be void by any competent
authority.
(b) the Muhammadan law, in cases where the parties are Muhammadans and the
Hindu law, in cases where the parties are Hindus, except in so far as such law
has been altered or abolished by legislative enactment, or is opposed to the
provisions of this Act, or has been modified by any such customs as is above
referred to.”
“7. Local customs and mercantile usages when valid.—All local customs and
mercantile usages shall be regarded as valid, unless they are contrary to justice,
equity or good conscience, or have, before the passing of this Act, been declared
to be void by any competent authority.”
11. Amongst the Sikh Jats of Punjab province, there exists a custom, where the widow
marries her first husband’s brother in the Karewa form, remarriage would not cause
forfeiture of her own share. [See Chunnilal v. Mst. Attar Kaur, AIR 1933 Lah. 69].
12. In respect of Jats belonging to Firozepur district, it has been held that a widow
who remarried her first husband’s brother succeeds to a co-widow in preference to
collaterals. But the widow’s right only accrues on husband’s death, and if it does not accrue
then, it cannot accrue later by the death of subsequent heir. The fact, if the widow is a
Karewa widow it would not affect her right in a suit the parties to which were the two
widows of a Manhas Rajput resident in the Shakargarh Tehsil of Gurudaspur District, had
that the plaintiff (upon whom under the circumstances the onus lay) had failed to prove a
custom in her favour, excluding the defendant, who was a co-widow by a Karewa marriage,
from succeeding to a share in the deceased husband’s estate (Mst. Dakho v. Mst. Gano, 22
P.R. 889). Even a woman who had contracted such marriage may not forfeit her life estate,
if any, in her deceased husband’s property despite the provisions of the Hindu widows
Remarriage Act, 1856. However, the said principle would not apply where a remarriage is
not with the brother of her deceased but with some other relative.
13. In Shrimonai Gurdwara Parbandhak Committee and Others v. Harcharan
Singh, AIR 1934 Lah 1, a Division Bench of the Lahore High Court held :
“First of all, it was objected that Harcharan Singh was not the legal representative
of his deceased brother Gurcharan Singh, but that his mother Mr. Uttam Kaur, was
his legal representative. Counsel for Harcharan Singh stated before the Tribunal
that he had no objection to the mother also being impleaded as the legal
representative of the deceased Gurcharan Singh, if it was held that she was one. It
was denied however that she was the legal representative of the deceased
Gurcharan Singh, and this contention was upheld by the Tribunal on the unrebutted
testimony of the witness examined. There is no question that this decision is right.
A mother as a rule in the Punjab, where custom is the rule of decision, only
succeeds when there are no sons and she succeeds not as the mother of the sons but
as the widow of her deceased husband. See in this connection the replies to
questions 35, 41 and 53 of Currie’s Customary Law of the Ferozepore District. In
reply to the last question there is a note to the effect that the mother succeeds really
as the widow of her husband and not as the mother of the last owner. There are
numerous decisions to this effect as well. It follows that, where there are sons they
exclude the mother and if a son dies he is succeeded by his brother but when the
last surviving son dies without issue then the mother succeeds in her capacity as
 widow of her deceased husband. I may here refer to one authority that of a Full
Bench, reported as Mt. Desi v. Lehna Singh. It is clear from this case that there
were two sons who both died without issue and it was not till the death of the
second that their mother set up a claim as against the collaterals. She was however
non-suited on the ground that she had remarried and could not, therefore, be looked
upon as the widow of her first husband.”
[Emphasis supplied]
14. Yet again in Diwan Singh and Another v. Natha Singh and others, AIR 1937 Lah
468, it was held :
“The case of a mother inheriting property on the death of her son obviously stands
on a different footing and cannot, I think, be considered to be analogous to the
present case. In the present instance, it seems clear that when the widow Mt. Utmi
succeeded collaterally on the death of Jowala Singh and Mihan Singh, she
succeeded to the estate as the representative of her husband and not of Jowala
Singh or Mihan Singh. Consequently on her death the estate must, I think, be
treated as though Prem Singh himself had succeeded to it”
15. Our attention has, however, been drawn to a decision of this Court in Ujagar Singh
v. Mst. Jeo, AIR 1959 SC 1041, wherein this Court upon noticing a large number of
conflicting decisions, came to the conclusion that existence of a general custom entitling the
collaterals to succeed in preference to sister had not been proved. It, therefore, seemed to
Their Lordships that in the interest of justice the respondent therein (sister) should succeed in
the suit as her brother’s heir under the Hindu Law.
16. In absence of any proof of custom, indisputably the Hindu Law would apply. A’
fortiori Hindu Law of Inheritance (Amendment) Act, 1929 in terms whereof a sister becomes
an heir in preference to the collaterals would be applicable in regard to devolution of
property.
17. We may, however, notice that customary law has been recorded in Rattigan’s
Digest of Customary Laws. The Courts below have categorically held the law to be
applicable in the instant case is the customary law having regard to the fact that the parties
belonged to the community of Sidhu Jats.
18. In R.B.S.S. Munnalal and others v. S.S. Rajkumar and others, AIR 1962 SC
1493, this Court was considering the question as to whether a Jain widow could adopt a son
to her husband without his express authority, being governed by the custom which had by
long acceptance become part of the law applicable to them. Therein, it was observed :
“It is well-settled that where a custom is repeatedly brought to the notice of the
Courts of a country, the courts may hold that custom introduced into the law
without the necessity of proof in each individual case.”
19. The Court can also take judicial notice of such customs in terms of Section 57 of
the Evidence Act, 1872. As and when custom has repeatedly been recognized by the Courts,
the same need not be proved.Reference in regard to the Punjab ‘general custom’ may be
made to Ujagar Singh (supra), and Bawa v. Taro, AIR 1951 Punj 239. 20. In
Harcharan Singh v. Mohinder Kaur, AIR 1987 P&H 138, Paragraph 22 of the Rattingan’s
Digest was noticed, holding that in terms thereof there is a custom in Punjab to the effect that
in default of male lineal descendants and of a widow the mother of the deceased succeeds to
a life interest, provided she had not remarried. It reads as under :
 “22. In default of male lineal descendants and of a widow the mother of the
deceased succeeds to a life interest, provided she has not remarried.”

21. In Chunnilal (supra), Lahore High Court observed :

“Where a person dies leaving two widows and one of them remarries the whole
estate of the deceased passes to the other widow and the mere retention of the re-
married widow’s name in the revenue records would not place her in adverse
possession of her share qua the co-widows and owing to her intervening between
the estate and the reversioner the latter’s rights would not be affected.”
22. The learned trial Judge categorically held that Relu Singh belonged to Sidhu Jats of
Muktsar Tehsil, who were governed by Zimindara custom, stating :
“Since the property was ancestral according to para 13 of the Digest of customary
law on the death of one of the two co-widows the survivor took the entire estate by
survivorship. Raj Kaur was therefore entitled to succeed to the estate of Sobhi by
the rule of survivorship to the exclusion of the plaintiff.”
23. Para 13 of the said Digest reads as under :
“13. On the death of one of two co-widows the survivor takes by survivorship,
even if she has remarried by Karewa, provided such re-marriage has not caused a
forfeiture of her own share.”
24. Rattigan’s Digest was also referred to by this Court in Daya Singh (Dead) through
L.Rs. and Another v. Dhan Kaur, AIR 1974 SC 665 : (1974) 1 SCC 700, but therein again
existence of such a custom had not been proved. It is no doubt true that if the1929 Act
applies, the appellant would succeed to the interest of her brother after her mother’s death;
but the said Act of 1929 is also subject to applicability of customary law.
25. As statutory law did not exclude the applicability of the customary law, the
principle that customary law would prevail over the statutory law would apply. It was so
found by the Courts below.
26. A serious contention was raised that the validity of customs must be judged on the
touchstone of justice, equity and good conscience. No such contention had been raised
before the learned trial Judge or before the High Court. It is one thing to say that customary
law had no application or the custom had not been proved; but it is another thing to say
despite its acceptance and proof the same should not be applied on the ground of equity,
justice and good conscience. We, therefore, cannot go into such a contention.
27. No contention had also been raised before the Courts below that the custom in
question is not a special or local custom, but merely a general custom. Such a contention
again cannot be allowed to be raised for the first time before this Court particularly in view of
the fact that they have categorically held that the Jats are governed by customary law; the
principle being ‘keeping of the property within the family’.
28. Raj Kaur, who was a widow of Hira Singh, was married to another brother just to
safeguard the family property. She succeeded under the customary laws to her husband after
the death of her co-widow. In that view of the matter, if the daughters who were
married were to be excluded by customary law, no exception thereto can be taken.
29. In Daya Singh (dead) through L.Rs. (supra), paragraph 23 of Rattingan’s Digest of
customary law of Punjab has been noticed. It was held :
 “It is on the basis of this Customary Law that the reversioners succeeded in the suit
filed by them questioning the gift made by the respondents’ mother to her. There is
no doubt that Rattigans work is an authoritative one on the subject of Customary
Law in Punjab. This Court in Mahant Salig Ram v. Musammat Maya Devi said:
The customary rights of succession of daughters as against the collaterals of the
father with reference to ancestral and non-ancestral lands are stated in para 23 of
Rattigan’s Digest of Customary Law. It is categorically stated in sub-para
(2) of that paragraph that the daughter succeeds to the self-acquired property of the
father in preference to the collaterals even though they are within the fourth
degree. Rattigan’s work has been accepted by the Privy Council as a book of
unquestioned authority in the Punjab. Indeed, the correctness of this para was not
disputed before this Court in Gopal Singh v. Ujagar Singh. “
30. However, therein the customary law was not applied in view of the application of
Section 8 of the Hindu Succession Act, 1956.
31. We may furthermore notice that the customary law has been specifically been
excluded in terms of Section 4 of the Hindu Succession Act, 1956. If the intention of the
makers of the statute in the 1929 was to completely exclude the applicability of the
customary law, it would have been said so explicitly.
32. Reliance has been placed on Smt. Dipo v. Wassan Singh and others, (1983) 3 SCC
376, wherein the sister was held to be a preferential heir as it was found that the entire
property was an ancestral property, stating :
“We also proceed on the basis that according to the prevailing custom of the area,
collaterals and not the sister are preferential heirs to ancestral property in the hands
of a propositus, while the sister and not the collateral is a preferential heir in
regard to non-ancestral property. We must add here that we are not quite satisfied
that the custom has been properly established, but for the purposes of the present
case, we proceed on the basis that the custom has been established. But that is not
the end of the problem before us. No doubt the properties which have been found
by the lower Courts to be ancestral properties in the hands of Bua Singh are
properties which originally belonged to Bua Singh ancestors. But Bua Singh was
the last male holder of the property and he had no male issue. There was no
surviving member of a joint family, be it a descendant or otherwise, who could
take the property by survivorship. Property inherited from paternal ancestors is, of
course, ancestral property as regards the male issue of the propositus, but it is his
absolute property and not ancestral property as regards other relations. In
Mulla’s Principles of Hindu Law (15th Edn.), it is stated at p. 289: if A inherits
property, whether movable or immovable, from his father or fathers father, or
fathers, father, it is ancestral property as regards his male issue. If A has no son,
son’s son, or son’s son’s son in existence at the time when he inherits the
property, he holds the property as absolute owner thereof, and he can deal with it
as he pleases……
* * *
A person inheriting property from his three immediate paternal ancestors holds it,
and must hold it, in coparcenary with his sons, son’s sons and son’s son’s sons, but
 as regards other relations he holds it, and is entitled to hold it, as his absolute
property.
Again at p. 291, it is stated:
The share which a coparcener obtains on partition of ancestral property is ancestral
property as regards his male issue. They take an interest in it by birth, whether
they are in existence at the time of partition or are born subsequently. Such share,
however, is ancestral property only as regards his male issue. As regards other
relations, it is separate property, and if the coparcener dies without leaving male
issue, it passes to his heirs by succession.
3. We are, therefore, of the view that the lower Courts were wrong in refusing to
grant a decree in favour of the plaintiff as regards property described by them as
ancestral property. The defendants were collaterals of Bua Singh and as
regards them the property was not ancestral property and hence the plaintiff was
the preferential heir. The plaintiff was entitled to a decree in respect of all the
plaint properties.”
33. There is no dispute in regard to the aforementioned proposition of law. To the
same effect is the decision of this Court in Dharma Shamrao Agalawe v. Pandurang Miragu
Agalawe and others, (1988) 2 SCC 126 and Sheela Devi and Others v. Lal Chand and
Another, 2006 (10) Scale 75.
The said decisions, however, for the reasons stated hereinbefore, have no application
in the fact of the present case.
34. For the reasons aforementioned, the appeal being devoid of any merit is dismissed.
However, in the facts and circumstances of the case, there shall be no order as to costs.
Appeal dismissed.

[2007 (2) TNCJ 144 (Mad)]

MADRAS HIGH COURT
BEFORE:
P. JYOTHIMANI, J.
PALANIAMMAL AND OTHERS ….Appellants
Versus
SUNDARAMBAL AND OTHERS ....Respondents
[Appeal Suit No 317 of 1993, decided on 4 June, 2007]
th

(A) Evidence Act, 1872—Sections 63 (C) and 68—Will—Proof of—Mere

technicalities cannot be taken into consideration to throw away the Will as not genuine
—Especially in the circumstances that the said attesting witness have clearly deposed
the execution of the Will by testator in the manner known to law—Reasoning given by
the trial Court in disbelieving the attesting witnesses on technicalities and holdings that
Will has not been proved, based on not only improper reasoning but wrong findings—
Perverse decision—Technicality cannot stand in the way of rendering substantial
justice—Judgment and decree of trial Court set aside to such extent.
(Paras 21 to 23 and 27)
(B) Will—Suspicious circumstances must be subject to the test of the satisfaction
of judicial conscience and it is validly executed.
(Para 24)
(C) Civil Procedure Code, 1908—Section 96—Appeal—Entitlement to 1/4th share
—Will validly executed by the testator in respect of A and B Schedule properties—In
favour of defendants 3 and 4—C Schedule property not included in the Will—Plaintiff
is entitled for 1/4th share in the C Schedule property—D Schedule property too not
forming part of Will—No evidence on record to show that the third defendant has sold
the D Schedule property in favour of fifth defendant for any family necessities of the
fourth defendant—Sale effected in respect of D Schedule property by third defendant in
favour of fifth defendant except it relates to the 1/4 th share of the fourth defendant will
automatically be invalid and not binding upon the plaintiff—Suit of the plaintiff stand
dismissed in respect of Schedule A and B properties—Plaintiff entitled to the partition
of 1/4th share in respect of C and D Schedule suit properties—Parties given liberty to
move under Order XX, Rule 12 of C.P.C. in respect of Schedule C and D properties.
(Paras 28 and 29)
(D) Tamil Nadu Court Fees and Suits Valuation Act, 1955—Section 12 (4) (a)—
Power of Appellate Court—To decide about the correctness of court-fee.
(Para 9)
Case law.—2001 (3) MLJ 315; 2002 (1) SCC 304; AIR 1959 SC 443; 2005 (8) SCC
67; 2007 (2) MLJ 466; 2002 (1) CTC 650.
Counsel.—Mr. R. Gandhi, S.C. for Mr. R.G. Harendhiran, for the appellants; Mr. R.
Krishnan for Mr. A. Sivaji, Respondent for respondent 1; Mr. G. Poonkundran, for
respondent 2, 3 not served (No appearance).
JUDGMENT
P. JYOTHIMANI, J.—Defendants 3 to 5 in the trial Court are the appellants. The first
respondent herein filed the suit in O.S.No.86 of 1987 on the file of the Sub Court, Tiruppur
for a partition and separate possession of one-third share in Schedule A to D properties
mentioned in the plaint and also for direction against defendants 3 to 5 to hand over
possession of the said share to the plaintiff apart from mesne profits. The case of the plaintiff
was that she is the elder sister of the first defendant. Both of them having born to their
mother Palaniyammal the second defendant who has subsequently died, through,
Chenniyappa Gounder. After the life time of their mother Chenniyappa Gounder has married
the third defendant in the suit as his 2nd wife. The 4th defendant was born to Chenniyappa
Gounder through his second wife Palaniyammal as their son. The 5th defendant is the
purchaser of the D Schedule property from the third defendant.
2. It is the further case of the plaintiff that during the life time of the second defendant,
the said Chenniyappa Gounder has lived with the third defendant and therefore, the fourth
defendant who was born to the third defendant through Cheniyappa Gounder is illegitimate.
Therefore, according to the plaintiff the first defendant and the second defendant their mother
are alone entitled to the properties of Cheniyappa Gounder. According to the plaintiff,
Chenniyappa Gounder died on 14.07.1984 intestate leaving behind his wife, the second
defendant apart from the plaintiff and the first defendant as his daughters being his only legal
heirs. Thereafter, it is the case of the plaintiff that the third defendant who was his
legitimate wife of her father Cheniyappa Gounder has trespassed into the A to C Schedule
properties and defendants 3 and 4 are in possession as trespassers.
3. It is also the case of the plaintiff that the third defendant has illegally sold away the
D Schedule property in favour of his close relative and the said document is not valid and
inasmuch as the plaintiff is not a party to the document and did not derive any benefit
along with defendants 1 and 2, the sale effected in favour of the 5th defendant in respect of
the D Schedule property is not valid in law. The possession of defendants 3 and 4 are only as
that of trespassers in respect of Schedule A to C. The plaintiff also stated that to her
knowledge her father has not executed any Will. In any event it is stated that the plaintiff
reserves her right to file her detailed reply statement as and when any such documents are
produced. In view of the same, the said suit for partition was filed by paying court fee under
Section 37(2) of the Tamil Nadu Court Fees and Suit Valuation Act, 1955 claiming that
the plaintiff is in joint possession with defendants 1 and 2 with regard to A to D Schedule
properties.
4. The 3rd defendant has filed the written statement. While admitting, that the second
defendant is the mother of the plaintiff and first defendant, it is the case of the 3rd defendant
that she was the second wife of the deceased Chenniyappa Gounder. It is also admitted that
the suit properties belonged to Chenniyappa Gounder. But it is denied that Chenniyappa
Gounder died intestate. It is the case of the 3rd defendant that it was she, who has given in
marriage to the plaintiff and the first defendant. It is also her case that since second
defendant was not having any male child, it was on her advice the third defendant was
married and thereafter the second defendant has never lived with her husband Chenniyappa
Gounder after some criminal case. It is also the case of the 3rd defendant that the plaintiff
and the first defendant have also fallen out of their father and during the last date of
Chenniyappa Gounder, it was only the third defendant, who was looking after him. It is also
the case of the third defendant that the said Chenniyappa Gounder during his life time when
he was hale and healthy, has executed a registered Will dated 07.08.1981 bequeathing the
property in favour of the fourth defendant, who is the son of the third defendant and it was
pursuant to the said Will the third and fourth defendants have been in possession. Since in
the Will the Chenniyappa Gounder has not chosen to mention about the C Schedule property
which he desired to give to the fourth defendant, if at all the plaintiff is entitled, she can only
claim right under the C Schedule property along with the fourth defendant and the first
defendant. Therefore, the third defendant denies that the plaintiff and the first defendant have
any share in A and B Schedule properties. The first and the second defendants in the suit
have remained ex-parte.
5. The trial Court has framed the various issues including, as to whether the third and
fourth defendants are the legal heirs of Chenniyappa Gounder, as to whether the Will
executed by Chenniyappa Gounder on 07.08.1981 is valid in law and if so whether the fourth
defendant is entitled for the A and B Schedule properties, as to whether the plaintiff was
entitled for one-third share apart from the issue as to whether the sale given to the fifth
defendant in respect of D Scheduled property is binding on the plaintiff. There was another
suit filed by the plaintiff in O.S.No.35 of 1988 claiming one-fourth share from the 4th
defendant, namely, Indian Bank, Tiruppur in respect of the amount pending and also for
injunction against defendants 1 to 3. However, in the present appeal we are not concerned
about the said second suit. Both the said suits were taken together and the plaintiff was
examined as P.W.1 apart from the third defendant as D.W.1 and two other witnesses D.W.2
and D.W.3 on the defendant side after marking nine documents on the plaintiff’s side as
Ex.A-1 to A-9 and seven documents on the defendant side as Ex.B-1 to B-7.
 6. The learned trial Judge while considering that Chiniyappa Gounder married the third
defendant during the lifetime of his legally married wife namely the second defendant and
therefore, his marriage with the third defendant cannot be accepted as legitimate but has held
that the son born to Cheniyappa Gounder through the third defendant, namely, the fourth
defendant can be treated as a son and entitled for share from Cheniyappa Gounder’s property,
however, stating that he is not a legitimate son and therefore, held that the fourth defendant is
not a legal heirs of Cheniyappa Gounder. While considering the validity of the Will executed
by Cheniyappa Gounder dated 07.08.1981, which was marked as Ex.B.7 by giving the A and
B Schedule properties in favour of the fourth defendant, the trial Court has come to the
conclusion that the said Ex.B.7 Will has not been proved by defendants 3 and 4 and
therefore, held that the fourth defendant is not the owner of A and B Schedule properties.
While deciding about the share to which the plaintiff was entitled, the trial Court has come
to the conclusion that the plaintiff, first defendant and the second defendant along with the
fourth defendant are entitled for one fourth share each from Cheniyappa Gounder’s
property and in view of the same, the plaintiff was given one fourth share. Regarding the
alienation made by third and fourth defendants in respect of D Schedule property to the fifth
defendant the trial Court has found that the third defendant has not proved that it was for the
necessities of the fourth defendant the sale was effected and therefore, the sale effected in
favour of the fifth defendant, was held to be not valid. It is as against the said
judgment and decree, defendants 3 to 5 have filed the above appeal.
7. Mr.R.Gandhi, learned senior counsel appearing for the appellants would
vehemently contend that when once the plaintiff has come forward with the specific case that
defendants 3 and 4 are trespassers in respect of the Schedule mentioned properties and
admitting specifically that the defendants 3 and 4 are in actual possession of Schedule A to
C properties, paying court fee under Section 37 (2) of the Court Fees Act, stating falsely as
if she is in joint possession with defendants 1 and 2 is not correct. Unless the court fee is
paid as per Section 37(1) of the Act, the plaintiff’s suit cannot be sustained. The third
respondent in the appeal who is the second defendant in the suit has not appeared through
counsel. In any event, it is stated that she died and the first and second respondents who are
the plaintiff and the first defendant respectively are her only legal heirs who are already on
record.
8. On the other hand, as contended by the learned counsel for the first respondent, the
court-fee was never an issue raised by defendants 3 and 4 in the Court below and therefore,
the trial Court did not frame it as an issue and there was no decision rendered in that regard
also. In such circumstances, the power and jurisdiction of the Appellate Court in that regard
is relevant to be considered. That is enshrined under Section 12(4) of the Tamil Nadu Court
Fees and Suits Valuation Act, 1955.
“12 (4) (a) Whenever a case comes up before a Court of Appeal, it shall be
lawful for the Court, either of its own motion or on the application of any of the
parties, to consider the correctness of any order passed by the lower Court
affecting the fee payable on the plaint or in any other proceeding in the lower
Court and determine the proper fee payable thereon.
Explanation.—A case shall be deemed to come before a Court of Appeal even if the
appeal relates only to a part of the subject-matter of the suit.
(b) If the Court of Appeal decides that the fee paid in the lower Court is not
sufficient, the Court shall require the party liable to pay the deficit fee within
such time as may be fixed by it.
 (c) If the deficit fee is not paid within the time fixed and the default is in respect of a
relief which has been dismissed by the lower Court and which the appeal seeks
in appeal, the appeal shall be dismissed, but if the default is in respect of a
relief which has been decreed by the lower Court, the deficit fee shall be
recoverable as if it were an arrear of land revenue.
(d) If the fee paid in the lower Court is in excess, the Court shall direct the refund of
the excess to the party who is entitled to it.”
9. A reading of the section especially Section 12 (4) (a) shows that only if an issue
relating to the court-fee was raised by the Lower Court and the Lower Court has considered
and given a finding on that the correctness of court-fee can be looked into or decided by the
Appellate Court. A fair reading of the Section shows that there is no suo moto power on the
Appellate Court to decide about the correctness of court-fee. Since it is the correctness of the
order passed by the lower Court in respect of the court-fee, which alone can be decided by
the Appellate Court. This was the view taken by this Court in Rajammal and others v. Selvi
and another by Mrs.Prabha Sridevan, J., in the judgment reported in 2001(3) MLJ 315.
While construing the provision of Section 12 (4) (a) of the Tamil Nadu Court Fee and Suits
Valuation Act, 1955 it was held that the suo moto power of the Appellate Court, in deciding
about the correctness of the Court fee itself is possible only when the lower Court has given a
decision about the court-fee and if the defendants have not raised any objections about the
correctness about the court-fee and no issue was framed, the Appellate Court cannot on its
own motion, consider its correctness. The relevant passage of the judgment is as follows:
“5. The Court of appeal may, therefore, lawfully consider the correctness of the
court-fee payable either on its motion or on the application of any of the parties
only if any order has been passed by the lower Court affecting the fee payable on
the plaint or any other proceeding. We cannot ignore even one word in the Section
so as to give a different meaning from what was intended. In this case, the
defendants who are the appellants herein had not raised any objection regarding
the correctness of the court fee. Therefore, no issue was framed in this regard by
the trial Court and no decision was given regarding the valuation. While so, the
Court of appeal cannot on its own motion, consider the correctness of the court-fee
since there is no order passed by the lower Court affecting this question. In this
case, there is no dispute that neither of the parties applied to the Court of appeal to
consider this. Even if they had done, the Court of appeal can decide this issue only
if the lower Court had passed an order regarding the same. In the old Act, the
accent appears to have been on the revenue and, therefore, Section 12 (2) read thus:
“But whenever any such suit comes before a Court of appeal reference or revision,
if such Court consider that the said question has been wrongly decided to the
detriment of the revenue, it shall require the party by whom such fee has been paid
to pay so much additional fee as would have been payable had the question been
rightly decided, and the provisions of Section 10, paragraph (ii) shall apply.”
But the language of the section as it stands now gives no room for any ambiguity.
Therefore, the issue regarding the correctness of the court-fee as raised by the learned senior
counsel for the appellant cannot be gone into by this Court at this stage.
 10. In these circumstances, the judgment relied upon by the learned senior counsel for
the appellant rendered in Kamaleshwar Kishore Singh v. Paras Nath Singh and others, 2002
(1) SCC 304, is not applicable to the facts of the case for the reason that there, the lower
Court has given a finding regarding the court fee and it was in those circumstances, held that
it is the reading of the plaint as a whole which must be taken into consideration for the
purpose of payment of court fee irrespective of any objection raised by the defendants in
the written statement.
11. In respect of the decision arrived by the trial Court regarding Ex.B.7 Will executed
by Cheniyappa Gounder in favour of the fourth defendant, it is the vehement contention of
the learned Senior Counsel that while the attesting witnesses have been produced before the
Courts who were examined as D.W.2 and D.W.3 who have spoken about the mental status of
the testator at the time Ex.B.7 was executed and clearly in terms stated that they saw the
testator signing and in his presence they have also signed as attesting witnesses and in
such circumstances the trial Court has held against the Will on technical ground that the
attesting witness has stated that what was signed was in a stamp paper whereas it remains to
be a white paper and therefore, rejected the evidence, especially in the circumstance that
evidence was given by the attesting witnesses 11 years after they signed in the Will as a
witnesses.
12. On the other hand, it is the contention of the learned counsel for the respondent
that when 3rd and 4th defendants have placed reliance on the Will Ex.B.7, it is for them to
prove that the Will has been executed in accordance with law and the same is genuine and
according to the learned counsel, on appreciation of evidence when the Court has come to a
conclusion that the genuineness of the Will has not been proved, there is no necessity for this
Court to interfere. On considering the above said facts and rival contentions and also
referring to the judgment of the trial Court as also the documents the point that arises for
determination in this appeal is as to “whether the judgment of the trial Court is correct in so
far as it rejects the genuiness and proof of Ex.B.7 Will”.
13. On pleading, it is clear that admittedly, the suit properties which are four in
number, namely, A,B,C and D were purchased by Cheniyappa Gounder. It is also admitted
that Cheniyappa Gounder married the second defendant Palaniyammal and during the
subsistence of the said marriage he married the third defendant who is also called
Palaniyammal, and out of that relationship the 4th defendant was born. Likewise, it was
through the first wife of Cheniyappa Gounder the plaintiff and first defendant were born and
there were no other children. It is also now on admission that the second defendant died and
the plaintiff and the first defendant are the her legal heirs. It is also not in dispute that
Cheniyappa Gounder has executed a Will in Ex.B-7 dated 07.08.1981 and subsequently he
also died. In this regard, it is relevant that the plaintiff in the plaint has originally stated that
even though she was not aware of any other documents executed by Cheniyappa Gounder in
favour of defendants 3 and 4, she reserved her rights to file a detailed reply statement on
coming to know about any such documents. The wordings of the plaint in that regard are as
follows:
“Any how the plaintiff reserves her rights to file her detailed reply statement after
appropriate time when any such make-fully documents are produced at a later
stage.”
 14. It is in the written statement the 3rd defendant has clearly stated that in respect of
A and B Schedule properties Cheniyappa Gounder during his lifetime has executed and
registered a Will dated 07.08.1981 bequeathing the said properties in favour of the 4th
defendant. The contents of the written statement are as follows:
“8. In fact Cenniappa Gounder during his life time and when he was hale and
healthy and in good sense had executed a registered Will dated 07.08.1981 attested
by respectable persons in favour of the 4th defendant bequeathing the properties
mentioned in Schedule A and B of the suit properties.”
15. It is also on record that the plaintiff who has stated in the plaint that after she come
to know about any document stated to have been executed by Cheniyappa Gounder she
would file a detailed reply statement, has not chosen to file any reply statement even after
she was informed in the written statement about the Will executed by Cheniyappa Gounder
on 07.08.1981. It is relevant to point out that the plaintiff while examining herself as P.W.1
in the chief examination has not even stated opposing such Will even though she has stated
that her father was not in sound state of mind 6 years before his death. However, during
cross-examination of the 3rd defendant as D.W.1, a suggestion was put to her that the Will
was procured for taking away the property. A reference to Ex.B.7 shows that it relates to two
items of properties, which are A and B Schedule in the suit. In that Will which is registered,
Cheniyappa Gounder has given the said two items of properties in favour of 4th defendant
absolutely after his lifetime. The two attesting witnesses who have signed under Ex.B.7,
namely, Avinasiyappan and S.Easwaran were examined on the side of the 3rd and 4th
defendants as D.W.2 and D.W.3. D.W.2, who is one of the attesting witnesses while speaking
about the Will executed by Cheniyappa Gounder in categoric terms deposed that he saw
Cheniyappa Gounder signing the Will along with other witness Easwaran and thereafter they
have signed and afterwards it was produced before the Registrar Office in which also they
have signed as witnesses. The portion of the evidence of D.W.2 as follows:
16. It is true that while cross-examination he has stated that the evidence is given
many years after his signature and therefore, he has forgotten the time when he reached the
Registrar Office, as follows:
17. It is also true that D.W.2 has stated that a non-judicial stamp paper was purchased
in the name of Cheniyappa Gounder but under which denomination it was purchased, was not
known to him, which is as follows:
In the further cross-examination he has stated that he was not aware as to whether it
was a stamp paper or blank paper as follows:
18. A reference to the entire evidence of D.W.2 show that the plaintiff who has chosen
to state as P.W.1 even though without pleading since she has not filed any reply affidavit,
that her father was mentally not well 6 years before his death, there is not even any whisper
about the mental status of the father of the plaintiff while cross examining the attesting
witness D.W.2 as well as D.W.3.
19. Likewise, a reference to the next attesting witness Easwaran examined as D.W.3
also states clearly
In the cross-examination he has stated
20. Even while cross-examining the said D.W.3 there was absolutely no suggestion
from the plaintiffs side that Cheniyappa Gounder was not in a sound state of mind at the time
he has signed Ex.B.7.The legal aspect in respect of the requirement of Section 63(c) of Indian
Succession Act, 1925 contemplates the manner in which the Will has to be attested, which is
as follows:
“63 (c) The Will shall be attested by two or more witnesses, each of whom has
seen the testator sign or affix his mark to the Will or has seen some other person
sign the Will, in the presence and by the direction of the testator, or has received
from the testator a personal acknowledgment of his signature or mark, or of
the signature of such other person; and each of the witnesses shall sign the Will in
the presence of the testator, but it shall not be necessary that more than one witness
be present at the same time, and no particular form of attestation shall be
necessary.”
21. Likewise, the manner of proof of execution of the Will is enshrined under Section
68 of the Indian Evidence Act, 1872. A combined reading of both the legal provisions
along with the evidence of D.W.2 and D.W.3 no doubt shows that Ex.B.7 Will has not
only been executed in accordance with law and the same has been proved in the manner
known to law. However, the learned trial Judge while dealing with the said aspect of Ex.B-7
has chosen to take up the minor contradictions regarding the number of papers whether they
are stamp paper or blank papers and time taken for the purpose of executing the said Ex.B.7
Will and taking serious note of a repetition of D.W.2 and D.W.3 stating that the they have
seen the testators signing and after the testators signing the Ex.B.7 they have signed and after
their signatures, testators signed in the Will, to disbelieve the versions of D.W.2 and D.W.3
and has come to the conclusion that defendants 3 and 4 have not proved that Cheniyappa
Gounder has executed Ex.B.7 Will in a sound state of mind, which in my considered view is
not only based on the improper appreciation of evidence of D.W.2 and D.W.3 but on the
wrong application of legal provisions required for the purpose of proving the Will. In the
absence of any pleading by the plaintiff contrary to the terms of written statement wherein
the third defendant has specifically stated that Cheniyappa Gounder has executed a Will on
07.08.1981 and in the absence of any positive evidence or proof on the side of the plaintiff
that Cheniyappa Gounder was mentally ill for six years before the date of his death,
especially when it has been the case of the plaintiff as P.W.1 that she has always been taking
care of her father, it is not known as to how the trial Court has come to the conclusion as if
the plaintiff has denied the signature of Cheniyappa Gounder under Ex.B-7.
22. In any event, the question of referring the signature of Cheniyappa Gounder under
Ex.B.7 especially when it is a registered document with a necessary certificate issued by the
Registrar, to the handwriting experts does not arise. The learned trial Judge has lost sight of
the assertions made by D.W.2 and D.W.3 that it is nearly 11 years after their signing as
attesting witnesses under Ex.B.7, they were to give evidence before the Court and in such
circumstances mere technicalities cannot be taken into consideration to throw away the Will
as not genuine, especially in the circumstance that the said attesting witnesses have clearly
deposed the execution of the Will by Cheniyappa Gounder in the manner known to law as
stated above. Even though normally this Court as a First Appellate Court will not interfere
with the finding of the fact by the trial Court, being a Court of fact also this is a fit case
wherein interference is warranted since the reasoning given by the learned trial Judge in
disbelieving D.W.2 and D.W.3 attesting witnesses on technicalities and thereby holding that
Ex.B.7 Will has not been proved, is clearly based on not only improper reasoning but wrong
findings which are against the provisions of law. Also taking into consideration, the
conduct of the plaintiff having categorically stated in the plaint reserving her right to file a
detailed reply statement and having failed to do the same and in addition not even suggesting
to the attesting witnesses about the so called mental imbalance of her father for the past six
years from the date of his death and without producing any positive evidence to that
effects, there is absolutely no reason to disbelieve totally Ex.B.7 Will.
23. In view of the above said facts, the learned trial Judge ought to have taken the
overall view in accordance with law and in my considered view the decision is perverse and
the technicality cannot stand in the way of rendering substantial justice.
24. It is while discussing about the essentiality about the Will the Supreme Court in
the earliest of its judgment has laid down the law that when the evidence is satisfactory the
Court would justify in making finding in favour of the propounder. It was also held that the
suspicious circumstance must be subject to the test of the satisfaction of judicial conscience
and it is validly executed. The solemn question must be that it must be satisfied that the Will
has been validly executed by the testator who is no longer alive and it is this element of
solemnity which is stated to be the decisive factor. That was in Venkatachala Iyengar v.
B.N.Thimmajamma and others, reported in AIR 1959 SC 443, which runs as:
“However, there is one important feature which distinguishes Will from other
documents. Unlike other documents the Will speaks from the death of the testator,
and so, when it is propounded or produced before a Court, the testator who has
already departed the world cannot say whether it is his Will or not; and this aspect
naturally introduces an element of solemnity in the decision of the question as to
whether the document propounded is proved to be the last Will and testament of
the departed testator. Even so, in dealing with the proof of Wills the Court will
start on the same enquiry as in the case of the proof of documents. The propounder
would be called upon to show by satisfactory evidence that the Will was signed by
the testator, that the testator at the relevant time was in a sound and disposing state
of mind, that he understood the nature and effect of the dispositions and put his
signature to the document of his own free Will. Ordinarily when the evidence
adduced in support of the Will is disinterested, satisfactory and sufficient to prove
the sound and disposing state of the testator’s mind and his signature as required by
law, Courts would be justified in making a finding in favour of the propounder. In
other words the onus on the propounder can be taken to be discharged on proof of
the essential facts just indicated.”
25. In one of the latest judgments of the Hon’ble Supreme Court, while dealing with
the effect of registration of the Will wherein the identifying witnesses have affixed their
signature, it was held in 2005 (8) SCC 67, that the executor signing before the Sub-Registrar
and endorsement made by him will amount to attestation in the following words:
“23. A perusal of Ext.B.9 (in original) would show that the signatures of the
Registering Officer and of the identifying witnesses affixed to the registration
endorsement were, in our opinion, sufficient attestation within the meaning of the
Act. The endorsement by the Sub-Registrar that the executant has acknowledged
before him execution did also amount to attestation. In the original document the
executant’s signature was taken by the Sub-Registrar. The signature and thumb
impression of the identifying witnesses were also taken in the document. After all
this, the Sub-Registrar signed the deed. Unlike other documents the Will
speaks from the death of the testator, and so, when it is propounded or produced
 before a court, the testator who has already departed the world cannot say whether
it is his Will or not and this aspect naturally introduces an element of solemnity in
the decision of the question as to whether the document propounded is proved to be
the last Will and the testament of the departed testator.
24. In the instant case, the propounders were called upon to show by satisfactory
evidence that the Will was signed by the testator, that the testator at the relevant
time was in a sound and disposing state of mind, that he understood the nature and
effect of the dispositions and put his signature to the document of his own free will.
In other words, the onus on the propounder can be taken to be discharged on proof
of the essential facts indicated above. It was argued by learned counsel for the
respondent that the propounders themselves took a prominent part in the execution
of the Will which confer on them substantial benefits. In the instant case, the
propounders who were required to remove the said suspicion have let in clear and
satisfactory evidence. In the instant case, there was unequivocal admission of the
Will in the written statement filed by P.Srirammurthy. In his written statement, he
has specifically averred that he had executed the Will and also described the
appellants as his sons and Alla Kantamma as his wife as the admission was found
in the pleadings. The case of the appellants cannot be thrown out. As already
noticed, the first defendant has specifically pleaded that he had executed a
Will in the year 1980 and such admissions cannot be easily brushed aside.
However, the testator could not be examined as he was not alive at the time of trial.
All the witnesses deposed that they had signed as identifying witnesses and that the
testator was in sound disposition of mind. Thus, in our opinion, the appellants
have discharged their burden and established that the Will in question was
executed by Srirammurthy and Ext.B.9 was his last Will. It is true that registration
of the Will does not dispense with the need of proving, execution and attestation of
a document which is required by law to be proved in the manner as provided in
Section 68 of the Evidence Act, 1872. The Registrar has made the following
particulars on Ext.B.9 which was admitted to registration, namely, the date,
hour and place of presentation of the document for registration, the signature of the
person admitting the execution of the Will and the signatures of the identifying
witnesses. The document also contains the signatures of the attesting witnesses
and the scribe. Such particulars are required to be endorsed by the Registrar along
with his signature and date of document. A presumption by a reference to
Section 114 of the Evidence Act, 1872 shall arise to the effect that particulars
contained in the endorsement of registration were regularly and duly performed
and are correctly recorded. In our opinion, the burden of proof to prove the Will
has been duly and satisfactorily discharged by the appellants. The onus is
discharged by the propounder adducing prima facie evidence proving the
competence of the testator and execution of the Will in the manner contemplated
by law. In such circumstances, the onus shifts to the contestant opposing the Will
to bring material on record meeting such prima facie case in which event the onus
shifts back on the propounder to satisfy the court affirmatively that the testator
did know well the contents of the Will and in sound disposing capacity executed
the same.”
In this case it is seen under Ex.B.7 that the same attesting witnesses have also signed
as witnesses before the registrar who has duly certified on production of the said document.
In view of the above said facts, I do not think that there is any suspicious circumstance in
existence. It is also relevant to point out that even as per the judgment of the trial Court even
though the third defendant was held to be an illegitimate wife, the fourth defendant who was
admittedly born through the third defendant through Cheniyappa Gounder, has been given
one fourth share and therefore, it cannot be said that the fourth defendant was not a rightful
heir and therefore, there is no suspicious circumstance in existence. In the absence of any
suspicious circumstance in existence as it is seen on the over all facts and circumstance of the
case, I do not think that the onus on the third defendant in proving the testamentary capacity
of the testator was not discharged. As found by this Court in K.Jaganmohan v.
D.Ruckmani and another reported in 2007 (2) MLJ 466 by C.Nagappan, J. the ratio is clear,
namely,—
“It is well settled in law that in the absence of suspicious circumstances
surrounding the execution of the Will, it is sufficient for the propounder to
discharge the onus by adducing proof of testamentary capacity and the proof of
the signature of the testator as mandated by law. However, if there are suspicious
circumstances, the propounder has to explain them to the satisfaction of the Court
to discharge the onus, since the compliance of legal formalities as regards proof of
the Will alone would not serve the purpose.”
26. Further, mere exclusion of group of heirs will not itself make the Will invalid as it
was held by this Court in D.Kausalya, wife of late Durai, Chennai-7 v. S. Shankaran reported
in 2002(1) CTC 650.
27. In view of the above said facts and circumstances, the finding by the trial Court
that the Ex.B.7 Will executed by Cheniyappa Gounder dated 07.08.1981 has not been proved,
is not tenable and therefore, the judgment and decree of the court below in that regard is set
aside.
28. As admitted by defendants 3 and 4 themselves Ex.B.7 Will has not included C
Schedule property and therefore, there is no difficulty to come to the conclusion that the
plaintiff is entitled for one fourth share in the C Schedule property as found by the trial Court.
In respect of D Schedule property admittedly it is also not forming part of Ex.B.7 Will. As
correctly found by the learned trial Judge, there is no evidence on record to show that the
third defendant has sold the said D Schedule property in favour of the fifth defendant
for any family necessities of the fourth defendant and in view of the said facts the sale stated
to have been effected in respect of D Schedule property by the third defendant in favour of
the fifth defendant except it relates to the one fourth share of the fourth defendant will
automatically be invalid and not binding upon the plaintiff.
29. In view of the above said facts and circumstances, the appeals stands partly
allowed holding that—
(1) In respect of A and B Schedule suit properties the fourth defendant will be
entitled absolutely as per Ex.B.7 Will dated 07.08.1981 and the suit stands
dismissed in that regard.
(2) In respect of C and D Schedule suit properties the plaintiff will be entitled
to the partition of 1/4th share, and
(3) It is open to the parties to move appropriate application under Order
XX, Rule 12 of Code of Civil Procedure in respect of the said C and D
Schedule properties.
Considering the facts and circumstances of the case the parties shall bear their
respective costs.
 Appeal partly allowed.

[2007 (2) TNCJ 160 (SC)]

SUPREME COURT
BEFORE:
S.B. SINHA AND MARKANDEY KATJU, JJ.
M/S. KAMAKSHI BUILDERS ...Appellant
Versus
M/S. AMBEDKER EDUCATIONAL SOCIETY AND OTHERS ...Respondents
[Civil Appeal No. 6345 of 2000, decided on 18 May, 2007]
th

Tenancy—Plea of oral gift—Not proved—Tenant cannot claim adverse

possession so long as he continues to be tenant—High Court committed serious error in
holding that tenant perfected his title by adverse possession—There is nothing on
record to show that at any point of time respondent No.3-owner delivered possession to
respondent No.1-tenant—Respondent No. 1 being a tenant continued to be tenant
—High Court judgment set aside—Appeal allowed.
(Paras 2, 5, 7 and 37)
Case law.—(1988) 1 SCC 19; 1968 (3) SCR 862; (2003) 8 SCC 204; (2004)1 SCC 12;
AIR 1927 PC 23; AIR 1931 Bom 97; AIR 1976 Mad 323; (1999) 3 SCC 573; (1987) 3 SCC
211; (2005) 7 SCC 653; AIR 1981 SC 1862; AIR 1956 SC 593.
Counsel.—Mr. Dushyant A. Dave, for the appellant; Mr. K. Parasaran, for the
respondent No. 1.
JUDGMENT
S.B. SINHA, J.—This appeal is directed against the judgment and order dated
31.12.1999 passed by the High Court of Andhra Pradesh, allowing the appeal from a
judgment and decree dated 05.09.1998 passed by the IV Senior Civil Judge, City Civil Court,
Hyderabad in O.S. No. 161 of 1989.
2. Respondent No. 3 herein was the owner of the property which is situated at Bagh
Lingampalli, Hyderabad. It was let out to respondent No. 1, where an educational
institution was being run on a monthly rent of Rs.1,200/- by a deed of lease dated
16.05.1973. The period of lease was initially for 11 months, which expired in 1975.
Respondent No. 1, however, did not surrender the tenancy or deliver vacant possession of the
tenanted premises to respondent No.3. It tendered rents till December 1976. No rent,
however, was demanded by respondent No. 3 from respondent No.1. Several constructions
were raised by it from time to time.
3. Respondent No. 3, however, entered into a development agreement with the
managing partner of the appellant and other persons on 01.04.1986.A deed of partnership was
executed on 21.04.1986. Disputes and differences having arisen between the partners, the
same were referred to an arbitrator. An arbitration award was passed on 22.11.1987, in terms
whereof a sum of Rs.4,00,000/- was awarded in favour of Respondent No. 3. The said
award was made the rule of court in terms of Section 14(2) of the Arbitration Act, 1940 by an
order dated 29.02.1988. Allegedly, by reason of the said award, the appellant became the
owner of the property. Respondent No. 1 was called upon to pay rents in respect of the suit
property by a notice dated 22.11.1987. The tenancy was terminated by a notice dated
30.10.1988. On or about 08.12.1988, respondent No. 1, in reply to the said notice, asked the
appellant to furnish the particulars in regard to the ownership of the suit property. It,
however, not claimed therein that it had acquired any ownership by reason of a purported oral
gift made by respondent No. 3 herein, as appears to be the case now. As it failed to vacate
the premises, a suit for recovery of possession and arrears of rents and also for damages
for wrongful use and occupation of the property was filed by the appellant. In the written
statement filed in the suit, it was, inter alia, contended that respondent No. 3 herein made an
oral gift in its favour on or about 01.10.1975. In the alternative, it was contended that it had
acquired an indefeasible title in respect of the property in question by adverse possession.
Respondent No. 3 in its written statement supported the case of the appellant, inter alia,
denying and disputing the claim of respondent No. 1 herein that he made an oral gift in its
favour.
4. In the suit, inter alia, the following issues were framed :
“I. Whether the oral gift by the third defendant in favour of first defendant is true
and valid and binding on the plaintiff ?
II. Whether the documents relied upon by the plaintiff are brought into existence in
between the plaintiff and third defendant in the circumstances alleged in W.S. ?”
5. Respondent No. 1 admittedly did not examine himself. The suit of the appellant was
decreed. The learned trial Judge opined :
(i) The burden was on respondent No. 1 to prove the oral gift.
(ii) There was no reason for it not to disclose thereabout in its reply to the notice issued
by the appellant.
(iii) No declaration was filed by respondent No. 1 before the Urban Land Ceiling
Authority in the year 1976.
(iv) A purported letter written by respondent No. 3 confirming the oral gift had not
been produced.
(v) Although constructions were raised by it on the suit premises, in none of the
applications, the right to make constructions was based on the ownership of the
property derived by reason of the oral gift.
(vi) No disclosure was made in regard to the ownership of the property, in the return
filed by it before the Registrar under the Societies Registration Act.
(vii) No resolution had been passed by the Governing Body accepting alleged oral
gift.
(viii) No special quota or any reservation in the institution run by respondent No. 1-
Society for Muslims, having been made, the plea of oral gift cannot be believed.
(ix) No display on any board was made mentioning that the property was gifted to
respondent No.1-Society.
(x) No mutation was effected pursuant to or in furtherance of the alleged oral gift on
01.10.1975.
(xi) The witnesses of the purported oral gift being DW-2, DW-3 and DW-4, being the
Chairman of the respondent No.1- society, his P.A. and a Chartered Accountant
and friend of DW-2 respectively, no reliance can be placed upon their evidence.
 (xii) Plea of purported oral gift was made for the first time only in the written statement.
(xiii) No gift tax was paid in respect of the said purported gift either by respondent No. 3
or by respondent No.1.
(xiv) Had respondent No. 1 any intention to make any gift, ordinarily it would have
been presumed to do so in favour of the minority Muslim Societies.
(xv) No explanation had been offered by respondent No. 1 as to why it paid rent upto
October, 1976.
(xvi) In none of the letters addressed by Respondent No. 1 to the University Grants
Commission, Osmania University, Urban Land Ceiling Authority, Registrar of
Cooperative Societies, Municipal Corporation of Hyderabad, the factum of the
alleged deed of gift was disclosed.
(xvii) The purported reply sent to the notice marked as Ex. A4 had not been disclosed.
(xviii) For proving the oral gift Respondent No. 1 should have examined respondent
No.3.
(xix) Respondent No. 1 had not been able to show that it had acquired title by adverse
possession.
6. The High Court, however, by reason of the impugned judgment reversed the
said judgment holding :
(i) There was no reason as to why there was no demand to pay rent from respondent
No.1 for a period of ten years.
(ii) No explanation was offered as to why respondent No. 1was asked to deliver vacant
possession of the property only in the year 1987 and a suit was filed only in the
year 1989.
(iii) As respondent No. 1 constructed a large number of structures on the
schedule property upon obtaining necessary permission from the Municipal
Corporation, Hyderabad and has been paying taxes thereupon and having
informed thereabout to various authorities like University Grants Commission,
Osmania University, Government of Andhra Pradesh, no explanation was
offered from respondent No. 3 as to why he had been keeping silence for the
period upto his entering into agreement with the appellant as a partner and
allowing an award to be passed by the learned Arbitrator.
(iv) Acquiescence on the part of respondent No. 3 would give rise to a presumption that
respondent No. 1 had been allowed to raise construction, which must have been
done pursuant to the oral gift of the property.
(v) The reasoning of the trial Court that donor being a Muslim would not have gifted it
to an institution belonging to other community cannot be accepted. It was not
necessary for respondent No. 1 to inform about the said oral gift to various
authorities including the University Grants Commission.
(vi) The findings of the learned trial Judge disbelieving the case of respondent No. 1
are based on surmises and conjectures.
(vii) Non-examination of respondent No. 3 would give rise to an adverse inference as
burden of proof lay on him to show that he had not made any oral gift having
regard to his conduct apart from the oral testimony that Respondent No.1 has
paid rent to respondent No. 3 till 1976.
(viii) No materials was produced to show that in fact such rent was tendered after 1975.
 7. As regards the claim of respondent No. 1 that it had perfected its title by
adverse possession, it was held that although a tenant cannot claim adverse possession so
long as he continues to be a tenant, but once his tenancy is determined, his possession would
be adverse to that of the owner.
8. Appellant is, thus, before us.
9. Mr. Dushyant A. Dave, learned senior counsel appearing on behalf of the appellant,
would submit :
(i) The High Court committed a serious error in passing the impugned judgment
insofar as it failed to take into consideration that respondent No. 3 being admittedly
the owner of the property, the burden lay on respondent No. 1 who had alleged an
oral gift was made in its favour, and it having failed to prove the same, assuming
that respondent No. 3 did not demand rent or did not take step therefor,
respondent No. 1 cannot be said to have proved its case.
(ii) The question of respondent No. 1 acquiring any title by adverse possession would
not arise, as at all material point of time, it was a tenant.
10. Mr. K. Parasaran, learned senior counsel appearing on behalf of Respondent No.
1, would, on the other hand, submit :
(i) The burden of proof lay heavily on appellant to prove the oral gift was made by
examining the donor, i.e. respondent No. 3 in the suit and in any event, as it was
incumbent on him to examine himself inasmuch he having supported the case of
the appellant must also be held to be plaintiff.
(ii) Although DW-2, one of the attestors of the oral gift in his cross-examination stated
that he had written a letter of thanks to respondent No.3 for his generous donation,
non-production thereof would not give rise to an adverse inference, inasmuch as
had the respondent No.3 gone into the witness box, a suggestion would have been
put to him in regard thereto.
(iii) The learned trial Judge committed a serious error in opining that respondent
No. 1 should have displayed the factum of oral gift on any board, such a conduct,
Mr. Parasaran would contend, is very artificial and unnatural.
(iv) Although, no application for mutating the name of respondent No. 1 was filed, the
same was not sufficient to negative the gift, particularly in the context of other
surrounding circumstances.
(v) The learned Judge applied different standards by making observation that
respondent No. 1 had not made any declaration before the Urban Land Ceiling
Authorities about the gift and no minutes thereabout had been produced, as the
appellant or respondent No. 3 should have produced records of declaration before
the Urban Land Ceiling Authorities, particularly having regard to the fact that
the burden of proof in that behalf was on the appellant as it filed a suit for
ejectment.
(vi) Assumption of the learned trial Judge that respondent No. 3 being a Muslim would
have gifted the property to some minority institution is based on conjectures.
(vii) The trial Court has also committed a serious error in drawing adverse inference
against respondent No. 1 for not issuing any letter to the University Grants
Commission, Osmania University, Urban Land Ceiling Authorities, Registrar of
Cooperative Society, Municipal Corporation of Hyderabad, as there was no
occasion therefor.
 11. The learned counsel would contend that having regard to the provisions contained
in Article 67 of the Limitation Act, the suit was barred by limitation. The deed of lease,
being for a period of 11 months, expired on 16.07.1974 and limitation would be deemed to
run from the said date.
12. In this connection, our attention has also been drawn to the evidence of PW-1, who
was the Managing Partner of the appellant, which reads thus :
“Just one or two months prior to execution of A.10, I came into contact with D.3. I
do not remember the persons who introduced D.3 to me. I came to know
through D.3 that D.1 is tenant. On the date D.3 was introduced to me, he
informed that D. 1 is not paying the rents for the last 10 years.”
13. As it was known to the said witness that respondent No. 1 had not been paying
rents even before the partnership deed was entered into, the appellant would be presumed to
have no knowledge that Respondent No. 1 had been in possession of the property in
assertion of his title by not paying rents. As respondent No. 1 was in possession for a period
of more than 12 years, it must be held to have acquired title by prescription.
14. Respondent No. 3 was admittedly the owner of the property. As his
ownership had not been disputed, the burden was on respondent No. 1 to prove his title. It
has, as noticed hereinbefore, claimed title : (i) by reason of an oral gift; and (ii) by adverse
possession.
15. The case that the oral gift was made on 01.10.1975 was specifically made out.
The witnesses to the said oral gift were members of the Governing Council, his Personal
Assistant and a Chartered Accountant, who admittedly was a friend of DW-2.
16. It is expected of a person who has obtained title by reason of an oral gift; Hiba
although permissible in law, but a heavy burden lay on him to prove the same. Respondent
No. 1 is an educational society. It was running an institution on the suit property. It was,
therefore, expected of it that it would insist on execution of a registered deed of gift.
17. It may be true that, as a defendant, it was not required to examine respondent No. 3
herein , who had been siding with the plaintiff by calling him as a witness by getting
summons to depose in the Court. There cannot be any doubt whatsoever that only by
reason of the fact that respondent No. 3 did not get himself examined for one reason or the
other, the same would mean that respondent No. 1 discharged its burden. The learned trial
Judge did not place reliance on depositions of the witnesses examined on behalf of the
respondents to prove oral gift as they were interested persons. The High Court did not deal
with the matter. The learned trial Judge analysed the evidences brought on record by the
parties. So far as the appreciation of evidence based on oral evidence is concerned, the
learned trial Judge having had the occasion to notice the demeanour of the witnesses, was
the best judge to arrive at a finding in regard to their reliability or trustworthiness. The High
Court did not deal with the matter, ordinarily it could not have even done so [See Rajbir Kaur
and Another v. S. Chokesiri & Co., (1988) 1 SCC 19].
18. It may be true, as has been contended by Mr. Parasaran, that conduct of the parties
would be relevant, but what would be more relevant is the conduct of a party, who from his
status of a tenant acquires the status of the owner of the property. Acquisition of such
ownership by way of gift and, thus, wholly without consideration, is not expected of a society
registered under the Societies Registration Act. Not only that it was acknowledged such
donation to the donor by issuing an appropriate letter in that behalf (which is said to have
been done). DW-2 although stated before the Court that such a letter had been written, the
same had not been proved.
19. Mr. Parasaran himself has relied upon a decision of this Court in Gopal Krishnaji
Ketkar v. Mamomed Haji Latif & Others, 1968 (3) SCR 862, wherein this Court laid down
the law in the following terms :
“Even if the burden of proof does not lie on a party, the Court may draw an adverse
inference, if he withholds important documents in his possession which can throw
light on the facts at issue. It is, in our opinion, a sound practice for those desiring
to rely upon a certain state of facts to withhold from the Court the best
evidence which is in their possession which could throw light upon the issues in
controversy and to rely upon the abstract doctrine of onus of proof:”
20. The said decision has been noticed by this Court in subsequent decisions in
Punit Rai v. Dinesh Chaudhary, (2003) 8 SCC 204 and Citibank N.A. etc. v. Standard
Chartered Bank and Others etc., (2004) 1 SCC 12.
21. As the said letter has not been produced, the inference which could be drawn
therefrom is that either DW-2 did not tell the truth that such a letter was written and/or an
adverse inference could be drawn that had the said letter been produced, the same would have
gone against the interest of respondent No. 1. In making an oral gift by an owner of the
property in favour of his tenant apart from it being wholly unlikely, actual delivery of
possession is imperative. There is nothing on record to show that at any point of time,
respondent No. 3 had delivered the possession of the premises in question to respondent No.
1. Respondent No. 1 being a tenant, continued to be a tenant. Its status as a lessee on its own
showing merged into a higher status. At what point of time such status was changed been a
relevant fact. It was within the special knowledge of respondent No. 3. The onus lay heavily
on him to prove the same. It failed to discharge its burden.
22. The learned trial Judge cannot be said to have committed any error in noticing the
fact that respondent No. 1 on its own showing did not file any application for mutation of
its name before the Revenue authorities. It, even did not take any step to let others know
about its change of status, be it the revenue department, or be it other authorities with which
it was dealing, namely, the University Grants Commission, Government of Andhra
Pradesh, Osmania University, or even Municipal Corporation of Hyderabad. An application
for mutation of one’s name in the revenue records by the parties although would not by itself
confer any title, but then a presumption in regard to the nature of possession can be drawn in
that behalf. Had such an application been filed by respondent No. 1 before the concerned
authorities, at least it could have been shown that it had claimed possession on its own right,
not as a tenant.
23. The High Court although noticed the lease came to an end in the year 1975 and if
from the said date or at least from the date of purported oral gift allegedly made in its favour
by respondent No.1. Any change in the nature of its position occurred, it was expected of it to
accept the same by its conduct. Why it would pay rent to respondent No. 3 till October 1976
has not been explained.
24. Acquiescence on the part of respondent No. 1, as has been noticed by the High
Court, did not confer any title on respondent No. 1. Conduct may be a relevant fact, so as to
apply the procedural law like estoppel, waiver or acquiescence, but thereby no title can be
conferred.
25. It is now well-settled that time creates title.
 26. Acquisition of a title is an inference of law arising out of certain set of facts. If in
law, a person does not acquire title, the same cannot be vested only by reason of
acquiescence or estoppel on the part of other.
27. It may be true that respondent No. 1 had constructed some buildings; but it did so
at its own risk. If it thought that despite its status of a tenant, it would raise certain
constructions, it must have taken a grave risk. There is nothing on record to show that such
permission was granted. Although respondent No. 1 claimed its right, it did not produce any
document in that behalf. No application for seeking such permission having been filed, an
adverse inference in that behalf must be drawn.
28. It may be true that respondent No. 3 herein should have examined himself and the
learned trial Judge committed a serious error in drawing an adverse inference in that behalf as
against respondent No. 1. It was, however, so done keeping in view the fact that
respondent No. 3 was evidently not interested in the property in view of the fact that it had
suffered a decree. For all intent and purport, even if the submission of Mr. Parasaran is
accepted that the appellant is claiming only by reason of an award, he has transferred the
property in his favour. He received a valuable consideration in terms of the award. We are
not concerned with the validity thereof. Non-examination of Respondent No. 3 indisputably
would give rise to a presumption, as has been held by this Court in Sardar Gurbaksh Singh v.
Gurdial Singh, AIR 1927 PC 23; Martand Pandharinath Chaudhari v. Radhabai Krishnarao
Deshmukh, AIR 1931 Bom 97 and The Ramanathapuram Market Committee, Virudhunagar
v. East India Corpn. Ltd., Madurai, AIR 1976 Mad 323 and Vidhyadhar v. Manikrao and
Anr., (1999) 3 SCC 573, but by reason of presumption alone, the burden is not discharged. A
title is not created.
29. A claim of title by prescription by respondent No. 1 again is not tenable. It based
its claim on a title. It had, therefore, prima facie, no animus possidendi.
30. Reliance placed by Mr. Parasaran on Article 67 of the Limitation Act is also not
apposite. It is a special provision. It would apply in a case where a tenant has ceased to be a
tenant in terms of the provisions of the Andhra Pradesh (Rent and Eviction Control) Act. A
tenant continues to be a tenant despite termination of tenancy. Article 67 would not be
attracted in a case where a tenant remains a statutory tenant. In a case of this nature, Article
65 would apply. As the claim of respondent No. 1 was based on a title, the onus was on him
to prove the same. Respondent No. 1 failed to discharge the same and, therefore, the
learned trial Judge, in our opinion, has committed no error in passing a decree in favour of
the plaintiff.
31. In Smt. Shakuntala S. Tiwari v. Hem Chand M. Singhania, (1987) 3 SCC 211,
whereupon Mr. Parasaran placed strong reliance, this Court was considering a case where
termination of tenancy in terms of Sections 12 and 13 of the Bombay Rent Act stood
admitted. The question of applicability of Articles 66 and 67 of the Limitation Act was
considered from that end. It was held:—
“12. If that is so then on the strict grammatical meaning Article 67 of the
Limitation Act would be applicable. This is indubitably a suit by the landlord
against the tenant to recover possession from the tenant. Therefore, the suit
clearly comes within Article 67 of the Limitation Act. The suit was filed because
the tenancy was determined by the combined effect of the operation of Sections 12
and 13 of the Bombay Rent Act. In this connection, the terms of Sections 12 and
13 of the Bombay Rent Act may be referred to. At the most it would be within
 Article 66 of the Limitation Act if we hold that forfeiture has been incurred by the
appellant in view of the breach of the conditions mentioned in Section 13 of the
Bombay Rent Act and on lifting of the embargo against eviction of tenant in two.
Article 66 or Article 67 would be applicable to the facts of this case; there is no
scope of the application of Article 113 of the Limitation Act in any view of the
matter. Sections 12 and 13 of the Bombay Rent Act co-exist and must be
harmonized to effect the purpose and intent of the legislature for the purpose of
eviction of the tenant. In that view of the matter Article 113 of the Limitation Act
has no scope of application. Large number of authorities were cited. In the view
we have taken on the construction of the provisions of Articles 67 and 66 of the
Limitation Act and the nature of the cause of action in this case in the light of
Sections 12 and 13 of the Bombay Rent Act, we are of the opinion that the period
of limitation in this case would be 12 years. There is no dispute that if the period
of limitation be 12 years, the suit was not barred.”
32. The said decision has no application in the facts and circumstances of the
present case as there is nothing to show that after the expiry of period envisaged in the lease
and despite the fact that the respondent itself had been paying/tendering monthly rent, there
had been final determination of the tenancy pursuant whereto the respondent was required to
hand over the vacant possession to the landlord. Nothing has been brought on record to show
that the landlord has served any notice directing the tenant to handover vacant possession
upon valid termination of the lease.
33. In Devasahayam (Dead) By LRs. v. P. Savithramma and Others, (2005) 7 SCC
653, whereto our attention has again been drawn, this Court came to the conclusion that the
Civil Court had no jurisdiction to try the suit covered by the rent control legislation. No
such contention had, however, been raised. The question which as to whether the Civil Court
would have jurisdiction to determine a matter must fall for consideration of the trial Court.
An issue in that regard should have been framed. In this case, the respondents have raised a
plea of title in itself, the question in regard to the jurisdiction of the Civil Court has not been
raised, presumably in view of the fact, that ultimately the Civil Court was bound to
determine the question whether the defendant/respondent No. 3 made an oral gift or not being
a complicated question, could not have gone into in a suit under the Rent Control Act. In any
event, such a question having not been raised, we are of the opinion that the same should
not be permitted to be raised before us for the first time.
34. The plea in regard to lack of jurisdiction of the Civil Court has been raised for the
first time in the Written Submissions filed by the respondents and not even by the learned
counsel while making oral submission.
35. In Sohan Singh and Ors. v. General Manager, Ordnance Factory, Khamaria,
Jablapur and Ors., AIR 1981 SC 1862, this Court noted the following in this regard :
“We think that the view taken by the High Court on the facts of this case is not
correct because the jurisdiction of the labour Court was not challenged by the
respondents in that Court.”
36. In Nagubai Ammal and Others v. B. Shama Rao and Others, AIR 1956 SC 593,
this Court made a distinction between a proceeding which is collusive and one which is
fraudulent. Respondents have never questioned the validity of the Award and the decree.
No issue was framed in that behalf. It is not a case where the suit can be dismissed on the
ground of there being a collusive proceeding between defendant No. 3 and plaintiff.
 37. For the reasons aforementioned, the impugned judgment cannot be sustained,
which is set aside accordingly. The appeal is allowed. No costs.
Appeal allowed.

[2007 (2) TNCJ 172 (SC)]

SUPREME COURT
BEFORE:
S.B. SINHA AND MARKANDEY KATJU, JJ.
S. RATHINAM @ KUPPAMUTHU AND OTHERS ....Appellants
Versus
L.S. MARIAPPAN AND OTHERS ....Respondents
[Civil Appeal No. 6616 of 2002, decided on 18 May, 2007]
th

Private temple—Right to manage temple and/or shebaitship—Dispute between

two branches of family—Decree for management and possession for each branch for
two years—Testamentary succession—Decree attained finality in 1956—Wills by
both branches head for their son/ sons bequeathing their share/shares—Legal heirs—
Declaration of—Direction to trial Judge to pass appropriate order in this behalf—
Appeal dismissed with costs.
(Paras 1 to 4, 6, 39 and 40)
Important Point
(i) A Will denotes a testamentary document. It means a legal declaration of the
intention of a testator with respect to his property which he desires to be carried into effect
after his death. It is in its own nature ambulatory and revocable during his life.
(ii) A Will being not a transfer, the bar contained in Section 6 (d) of the Transfer of
Property Act, in our opinion, will have no application.
Case law.—(1971) 2 SCJ 527: (1970) 3 SCC 359; AIR 2004 SC 1772; AIR 1999 J&K
55; AIR 1957 AP 876; (1985)2 SCC 524; (1974) 2 SCC 563; AIR (1908) 35 Cal. 226; AIR
1972 Cal 95; ILR (1882) 6 Bom. 298; AIR 1976 SC 977; AIR 1975 Raj. 226.
Counsel.—Mr. V. Prabhakar, for the appellants; Mr. K.K. Mani, for the respondents.
JUDGMENT
S.B. SINHA, J.—Whether right to manage a temple and/or shebaitship can be a
subject-matter of testamentary succession is the question involved in this appeal, which arises
out of a judgment and decree dated 09.08.2000 passed by a Division Bench of the High Court
of Madras in L.P.A. No. 62 of 1991, affirming a judgment and decree dated 28.01.1991
passed by a learned Single Judge of the said Court in A.S. No. 661 of 1979.
2. A private family temple known as ‘Pechiamman Temple’ was founded by one
Palanichamy Chettiar. The genealogical table of the said Palanichamy Chettiar is as under :
PALANICHAMI CHETTIAR

L.P. Lakshman Chettiar Shanmugam @ Palanichami Chettiar

Thangam @ Palanichami Chettiar

Shanmugam @ Chellam @ Subbiah Palanichami
Chettiar (Died) Ramalingam

L.S. Mariappan

Rathinam @ Lakshmanan Chellam @ Subbiah Patchaimuthu Shanmugham Kuppumuthu

(Died) Palanisami
3. The founder of the trust dedicated properties for the maintenance of the temple and
performance of pujas consisting of four shop rooms in the front and a few residential
buildings at the back of the temple. Disputes and differences having been arisen between the
two branches of the family, Thangam son of Shanmugam filed a suit, which was marked as
O.S. No. 9 of 1943. The said suit was decreed, relevant portion whereof reads as under :
“Clause (iii) : That the C schedule properties be managed in turns between the
plaintiff and the second defendant on the one hand and defendants 1 and 3 to 9 on
the other, each branch for a period of two years.
Clause (iv) : That the said two branches also be in possession during their term of
management of the temple jewels mentioned as items 1 to 6 at page 13 of the
first defendant’s written statement (specified hereunder) in addition to amend as
per order in I.A. No. 375 of 1944 dated 15.04.1944) the bronze Soodam, thattu
with kalias referred to in the same page of the written statement.”
4. The said decree has attained finality, pursuant whereto the branch of Shanmugam
became entitled to a right of term of management for a period of two years. On or about
04.07.1956, L.P. Lakshmanan Chettiar and his two sons, however, entered into a partition
deed for division of their properties including the terms of management of the suit temple and
its properties. It was agreed that Lakshmanan Chettiar himself shall hold the posts of pujari
as well as trustee for two years, whereas his two sons shall hold the same for a period of eight
months each.
5. In respect of the properties in question, it was averred :
“No. 1 and 2 party shall hold, possess and enjoy the rent and income derived from
the C Schedule property.”
6. Lakshmanan Chettiar executed a Will on or about 24.05.1962 bequeathing his share
in favour of his son Chellam. He died on or about 10.04.1973. It is not in dispute that after
the death of Lakshmanan Chettiar, Chellam had been acting as a pujari as also a trustee for a
period of sixteen months and Shanmugam and his sons had been managing the said
properties for a period of eight months. Chellam died on 10.02.1980, leaving behind
Respondent No.1 herein as his heir and legal representative. Shanmugam also appears to
have executed a Will in favour of his sons.
7. For framing a scheme in respect of the said properties, a suit was filed by the
appellants against the said Thangam and others, which was marked as O.S. No.222 of 1975.
The learned Subordinate Judge dismissed the said suit by a judgment and order dated
19.02.1979. An appeal was preferred there against, which was marked as A.S. No. 661 of
1979, to which we shall advert a little later.
8. However, after the death of Chellam, the sons of Shanmugam filed a suit, which was
marked as O.S. No. 83 of 1982, inter alia, praying for a declaration that respondent No.1
herein was not the legal heir of Chellam @ Subbiah. Validity of the said Will dated
24.05.1962 was put in question. The learned Principal Subordinate Judge while holding
respondent No.1 to be the son of Chellam, also upheld the validity of the said Will executed
by Lakshmanan Chettiar. Aggrieved by and dissatisfied with the said judgment and decree
dated 13.03.1986, an appeal came to be preferred by the appellants herein, which was marked
as A.S. No.1363 of 1988. Both the appeals were heard together by the learned Single Judge
of the High Court. While holding the Will to be not valid in law, a scheme was directed to be
framed in respect of the management of the said properties. A Letters Patent Appeal being
No. 61 of 1991 was filed by respondent No. 1 herein, aggrieved by the direction to frame a
scheme. He also preferred a Letters Patent Appeal against that part of the finding of the
learned Single Judge that the Will executed by Lakshmanan Chettiar was not valid in law.
Respondent No. 4 herein also preferred a Letters Patent Appeal, which was marked as
L.P.A. No. 128 of 1991, questioning the framing of scheme. Appellants herein also preferred
a cross-objection, which was marked as Cross-Objection No. 106 of 1995 as against the
finding that respondent No. 1 was the son of Chellam @ Subhiah. The appeals and the cross-
objection were heard together.
9. It was accepted before the Division Bench that the scheme framed pursuant to the
decision of the learned Single Judge was working satisfactorily and no interference therein
was called for. The finding of the learned Single Judge to the effect that respondent No. 1
was the son of Chellam was also not seriously disputed. In regard to the validity of the Will,
however, the Division Bench held the same to be valid. Consequently, it was held that
respondent No. 1 was entitled to be in the management of the suit temple and its
properties for a total period of sixteen months within 24 months allotted to the branch of
Lakshmanan Chettiar.
10. Three of the plaintiffs are before us, being aggrieved by and dissatisfied with the
said judgment and decree. No appeal has been preferred as against rejection of the said
Cross-Objection No. 106 of 1995 or dismissal of the Letters Patent Appeal arising out of A.S.
No. 661 of 1979.
11. Mr. V. Prabhakar, learned counsel appearing for the appellants, in support of
the appeal, submitted :
(i) The right to manage a property and pujariship being a personal right, cannot be
transferred being not transferable within the meaning of Section 6 (d) of the
Transfer of Property Act;
(ii) The purported Will executed by Lakshmanan Chettiar dated 24.05.1962 must be
held to be invalid in law;
(iii) The right to hold the office of a pujari and a trust being a personal right, would
come to an end with the death of the holder of the office, whereupon the same
would devolve upon his heirs and legal representatives. Reliance, in this behalf,
has been placed on Kakinada Annadana Samajam etc. v. The Commissioner of
Hindu Religious and Charitable Endowments, Hyderabad & Others etc., (1971)
2 SCJ 527 : (1970) 3 SCC 359.
12. Mr. K.K. Mani, learned counsel appearing on behalf of the respondents, on the
other hand, would support the judgment. The learned counsel would contend that the issue is
covered by a decision of this Court in Angurbala Mullick v. Debabrata Mullick, 1951 SCR
1125.
13. It was urged that the appellants are estopped and precluded from questioning the
validity or otherwise of the Will as even Shanmugam had also executed a Will. It was
pointed out that the Will executed by Lakshmanan Chettiar on 24.05.1962 was given effect
to by the parties on his death which took place on 10.04.1973 and only upon the death of
Chellam, the appellants herein claimed a right of reversion therein on the premise that
Respondent No. 1 herein was not the son of Chellam.
14. The learned counsel appearing on behalf of respondent No. 4 herein, would submit
that the disputes and differences arose between the parties in regard to not handing over
the possession of the properties in terms of the judgment and decree passed by the competent
Courts and in that view of the matter, this Court may issue an appropriate direction.
15. The trust in question is a private trust. As a private trust, the terms and conditions
of the management of the temple, would, therefore, be subject to the desire of the founder of
the trust. No document in writing was produced in this behalf. The parties, however,
understood the Will of the founder of the trust to the effect that holding of the office of
pujariship as also the trusteeship for a term would be permissible in law. It was so
determined in the suit by the learned Subordinate Judge in O.S. No. 9 of 1943.
16. The very fact that both the branches had agreed to a term of management of two
years each and had given effect to the decree passed by the learned Subordinate Judge in the
said suit is a pointer in that behalf. Furthermore, Lakshmanan Chettiar and his two sons also
executed a deed of partition on 04.07.1956. It was agreed to by the parties to the said deed of
partition that each of them would hold the office of pujariship and trusteeship for a period of
eight months.
17. The issue must, therefore, be determined in the aforementioned backdrop of events.
18. Before, however, we advert to the legal issue, we may notice that the plaintiffs in
the suit claimed relief on the ground that upon the death of Chellam, his right has vested in
them as reversioners, contending that respondent No. 1 herein was not his son. Once a right
of reversion in the said office for a particular period, namely, sixteen months in a period of
two years is claimed, the existence of right in Chellam could not have been disputed. In law,
the same would be deemed to have been accepted. Unless the arrangements made by the
parties also and/or the devolution of the properties by reason of the said Will executed by
Lakshmanan Chettiar is found to be opposed to ‘public policy’ as envisaged under Section
23 of the Indian Contract Act, 1872, there does not exist any legal impediment in giving
effect thereto, particularly when the same would depend upon the desire in that behalf by the
founder of the trust.
19. A Will denotes a testamentary document. It means a legal declaration of the
intention of a testator with respect to his property which he desires to be carried into effect
after his death. It is in its own nature ambulatory and revocable during his life.
20. In Uma Devi Nambiar and Others v. T.C. Sidhan (Dead), AIR 2004 SC 1772, it
was held :
“10. Will is a translation of the Latin word “voluntas “, which was a term used in
the text of Roman law to express the intention of a testator. It is of significance that
the abstract term has come to mean that document in which the intention is
contained. The same has been the case with several other English law terms, the
concrete has superseded the abstract-obligation, bond, contract, are
examples (William: Wills and Intestate Succession , p.5). The word “testament” is
derived from “testatio mentis”, it testifies the determination of the mind. A
Will is thus defined by Ulpians as “Testamentum est mentis nostrae justa
contestatio in id sollemniter facta to post mortem nostrum valeat.” Modastinus
defines it by means of voluntas. It is “ voluntatis nostrae justa sententia, de eo
quod quis post mortem suam fieri vult (or velit )”; the word “justa” implying
 in each, that, in order to be valid, the testament must be made in compliance with
the forms of law. It means, “the legal declaration of a man’s intentions, which will
be performed after his death”. A last Will and testament is defined to be “the just
sentence of our Will, touching what we would have done after our death”. Every
testament is consummated by death, and until he dies, the Will of a testator is
ambulatory. Nam omne testamentum morte consummatum est; et voluntae
testamentoric est embulatoria usque od mortem . (For, where a testament is, there
must also of necessity be death of testator; for, a testament is of force after men are
dead; otherwise it is of no strength at all while the testator liveth.) A “Will”, says
Jarman, “is an instrument by which a person makes a disposition of his property
to take effect after his decease, and which is in its own nature ambulatory and
revocable during his life.” ( Jarman on Wills , 1st Edn., p. 11.) This ambulatory
character of a Will has been often pointed out as its prominent characteristic,
distinguishing it, in fact, from ordinary disposition by a living person’s deed,
which might, indeed postpone the beneficial possession or even a vesting until the
death of the disposer and yet would produce such postponement only by its
express terms under an irrevocable instrument and a statement that a Will is final
does not import an agreement not to change it. (Schouler: Law of Wills, Section
326). A Will is the aggregate of man’s testamentary intentions so far as they
are manifested in writing, duly executed according to the statute.”
21. A testator by his Will, may make any disposition of his property subject to the
condition that the same should not be inconsistent with the laws or contrary to the policy
of the State. A Will of a man is the aggregate of his testamentary intentions so far as they are
manifested in writing. It is not a transfer but a mode of dovolution. [See Beru Ram and
Others v. Shankar Dass and others, AIR 1999 J&K 55].
22. The question as to whether shebaitship can be a subject-matter of a Will came up
for consideration before a Four-Judge Bench of this Court in Angurbala Mullick (supra),
wherein it was categorically held :
“As the Judicial Committee observed in the above case, in almost all such
endowments the shebait has a share in the usufruct of the debutter property which
depends upon the terms of the grant or upon custom or usage. Even where no
emoluments are attached to the office of the shebait, he enjoys some sort of right
or interest in the endowed property which partially at least has the character of
a proprietary right. Thus, in the conception of shebaiti both the elements of office
and property, of duties and personal interest, are mixed up and blended together;
and one of the elements cannot be detached from the other. It is the presence of
this personal or beneficial interest in the endowed property which invests
shebaitship with the character of proprietary rights and attaches to it the legal
incidents of property”
It was also held :
“21. Assuming that the word “property” in Act 18 of 1937 is to be interpreted to
mean property in its common and ordinarily accepted sense and is not to be
extended to any special or peculiar type of property, even then we think that the
other contention of Mr. Tek Chand is perfectly sound. Succession to shebaitship,
even though there is an ingredient of office in it, follows succession to ordinary or
secular property. It is the general law of succession that governs succession to
shebaitship as well. While the general law has now been changed by reason of Act
 18 of 1937, there does not appear to be any cogent reason why the law as it stands
at present should not be made applicable in the case of devoluton of shebaitship.”
23. The principle enunciated therein was considered at some details by a Division
Bench of the Andhra Pradesh High Court in Narayanam Seshacharyulu and Another v.
Narayanam Venkatac-charyulu, AIR 1957 AP 876, but it is not necessary to advert thereto in
the facts of the present.
24. In Shambhu Charan Shukla v. Shri Thakur Ladli Radha Chandra Madan Gopalji
Maharaj and Another, (1985) 2 SCC 524, this Court held :
“15. The text of Hindu law and the aforesaid two decisions of this Court and the
earlier decision in Angurbala Mullick case 2 show that shebaitship is in the nature
of immovable property heritable by the widow of the last male holder unless there
is an usage or custom of a different nature in cases where the founder has not
disposed of the shebaiti right in the endowment created by him. In the present case
Purushottam Lal has not made any disposition regarding shebaiti right in his Will,
Ext. A-2 dated April 14, 1944 whereby he created the endowment. No custom or
usage to the contrary has been pleaded. Therefore, the widow Asharfi Devi had
succeeded to the shebaiti right held by him on his death as a limited owner and that
right has become enlarged into an absolute right by the provisions of Section 14(1)
of the Hindu Succession Act, 1956 and she could transfer that right by a Will in
favour of a person who is not a non-Hindu and who could get the duties of shebait
performed either by himself or by any other suitable person. In these
circumstances, I hold that the second respondent has acquired the shebaiti right
under the Will Ext. A-6 executed by Asharfi Devi on her death on March 7, 1963.
No interference is called for in this appeal with the judgment of the learned Single
Judge of the High Court. The appeal is accordingly dismissed with costs.”
25. Sabyasachi Mukharji, J. in his concurring Judgment stated the law thus :
“In my opinion it is well-settled by the authorities that shebaitship is a property
which is heritable. The devolution of the office of shebait depends on the terms of
the deed or the Will or on the endowment or the act by which the deity was
installed and property consecrated or given to the deity, where there is no
provision in the endowment or in the deed or Will made by the founder as to the
succession or where the mode of succession in the deed or the Will or endowment
comes to an end, the title to the property or to the management and control of the
property as the case may be, follows the ordinary rules of inheritance according to
Hindu law.”
26. In Ranbir Das and Another etc. v. Kalyan Das and Another, (1997) 4 SCC 102,
this Court stated the law thus :
“Will in the normal connotation, takes effect after the demise of the testator. But in
the case of nomination of a shebait, the nomination takes effect from the date of its
execution though it is styled as a Will. Once it takes effect, the nominee
becomes entitled to go into the office as a shebait after the demise of the last chela
of Hari Dass. Under these circumstances, the shebaitship being a property, vests in
Rambir Dass and he could administer the property and manage the temple for the
purpose of spiritual and other purposes with which Hari Dass, the original founder
had endowed the property to Lord Krishna and Radha.”
 27. We may notice that Dr. B.K. Mukherjea in his Tagore Law Lectures, on The
Hindu Law of Religious and Charitable Trust, inter alia, observed :
“5.30. Shebit’s right of nominating his successor.— The founder of an endowment
can always confer upon a shebait appointed by him the right of nominating his
successor. Without such authority expressly given to him, no shebait can appoint a
successor to succeed to him in his office. The power of nomination can be
exercised by the shebait either during his lifetime or by a Will, but he cannot
transfer the right of exercising this power to another person.”
28. In the aforementioned backdrop of events, we may test the decisions relied upon by
Mr. Prabhakar.
29. In Kakinada Annadana Samajam (supra), this Court was concerned with the
question as to whether a right of shebaitship can be held to be a fundamental right within the
meaning of Article 19 (1) (f) of the Constitution of India, as it then stood, and consequently
whether the provisions of the Andhra Pradesh Charitable and Hindu Religious Endowments
Act (XVII) of 1966 would be a law within the meaning of clause (5) thereof. It was held that
the trusteeship and pujariship would be a property but not a property within the meaning
of Article 19(1)(f) of the Constitution of India.
30. In Kali Kinkor Ganguly v. Panna Banerjee and Others, (1974) 2 SCC 563,
although a Division Bench of this Court opined that ‘a transfer of shebait by Will is not
permitted because nothing which the shebait has can pass by his Will which operates only at
his death’; but the question as to whether a Will would amount to a transfer or not did not
fall for consideration therein. The question which arose for consideration was as to whether
the right of shebaitship, temple and the deity installed therein is a transferable. This Court
while dealing with the said contention noticed :
“14. In the Hindu Law of Religious and Charitable Trust, First Edn, being the
Tagore Law Lectures delivered by Dr B.K. Mukherjea the statement of law at p.
228 is this: “Although shebaiti right is heritable like any other property, it lacks the
other incident of proprietary right, viz. capacity of being freely transferred by the
person in whom it is vested. The reason is that the personal proprietary interest
which the shebait has got is ancillary to and inseparable from his duties as a
ministrant of the deity, and a manager of its temporalities. As the personal interest
cannot be detached from the duties the transfer of shebaitship would mean a
delegation of the duties of the transferor which would not only be contrary to the
express intentions of the founder but would contravene the policy of law. A
transfer of shebaitship or for the matter of that of any religious office has nowhere
been countenanced by Hindu lawyers.”
31. However, yet again the Court noticed that the right against alienation had been
relaxed by reason of certain circumstances, stating :
“17. The rule against alienation of shebaiti right has been relaxed by reason of
certain special circumstances. These are classified by Dr. B.K. Mukherjea at p. 231
in his Tagore Law Lectures on the Hindu Law of Religious and Charitable
Trust, First Edn. under three heads. The first case is where transfer is not for any
pecuniary benefit and the transferee is the next heir of the transferor or stands in
the line of succession of shebaits and suffers from no disqualification
regarding the performance of the duties. Second, when the transfer is made in the
interests of the deity itself and to meet some pressing necessity. Third, when a
 valid custom is proved sanctioning alienation of shebaiti right within a limited
circle of purchasers, who are actual or potential shebaits of the deity or otherwise
connected with the family.”
32. The Calcutta High Court in Rajeshwar v. Gopeshwar, ILR (1908) 35 Cal. 226,
opined that nomination of a successor by Will may be permissible under a usage justifying
the same. A somewhat different view was taken by the same High Court in Sovabati Dassi v.
Kashi Nath, AIR 1972 Cal. 95. The Bombay High Court, however, took a different view.
[See Mancharam v. Pranshankar, ILR (1882) 6 Bom. 298].
33. However, we need not enter into the said question as the law is now well-settled in
view of the decision of this Court in Shyam Sunder v. Moni Mohan, AIR 1976 SC 977; [See
also Nandlal v. Kesharlal, AIR 1975 Raj.226].
34. Such a nomination is also permissible being intervivos. In view of the decisions of
this Court, we are of the opinion that it is not necessary for us to consider the decision of the
Madras High Court, on which Mr. Prabhakar has placed strong reliance, as the said
decision revolves round the question as to whether such a right is transferable or not. A Will
being not a transfer, the bar contained in Section 6(d) of the Transfer of Property Act, in our
opinion, will have no application. We, therefore, agree with the findings of the Division
Bench of the High Court that the Will is valid in law.
35. Furthermore, the necessity to have a fixed term of management for the purpose of
running the temple in question has been accepted by the family for a long time. If it is to be
held otherwise, the Court will have to disturb even a binding decree passed by the competent
Court of law which is binding otherwise on the parties, rendered as far back as in 1944. It is
for the said purpose that the conduct of the appellants becomes relevant. They not only
accepted the right of the branch of Shanmugam but also accepted the right of Chellam. It has
not been disputed that Chellam had been exercising the right of shebaitship for a period of
sixteen months in a period of two years for a long time. Once the finding of the courts below
to the effect that respondent No. 1 was his son, his right of inheritance is, thus, not being
disputed; in our opinion, the contentions raised in this appeal cannot be accepted.
36. We, therefore, affirm the findings of the Division Bench of the High Court. The
question, however, which remains for consideration would be as to whether this Court
should pass any order directing the parties to hand over possession on expiry of their term. In
law, undoubtedly, they are bound to do the same. They cannot hold the office more than the
period directed by the Court of law. Their terms have to be fixed. We may notice that before
the Division Bench of the High Court, the parties agreed to the following:
“(a) The branch represented by Ramlingam (applicant therein) would manage and
administer the temple and its properties for a period of two years.
(b) In so far as the other branch consisting of 1st respondent on one side and
respondents Nos. 2 to 4 on the other, they would be managing and administering
the temple for a period of 2 years, i.e. one year each.”
37. This Court in a contempt proceeding initiated by respondent No. 4, which was
marked as Contempt Petition No. 550 of 2004, directed :
“Without going into the allegations and counter allegations made in the contempt
petition, we direct respondent No. 1 to hand over the possession of the temple in
question to the applicant herein on 11th December, 2004 at 11.00 a.m. in the
presence of the bailiff of the Court of Principal Subordinate Judge, Madurai who
 will take inventory of the movables in the temple and the same shall be signed
by the applicant herein as well as the 1st respondent in the appeal. The 1st
respondent will also deposit a sum of Rs.10,000/- within four weeks from today.
The said amount shall be put in a fixed deposit in the name of the temple and the
Managing Trustee would be entitled to withdraw only interest thereof. The
compliance in this regard shall be intimated to this Court in the 1st week of
January, 2005.”
38. Several orders have been passed by this Court from time to time. It appears that
despite such directions, one party or the other claims to hold the office despite expiry of the
term. In this appeal, as has been suggested by Mr. Prabhakar, it may not be practicable for us
to fix any time for taking over or handing over of possession. It, however, appears that an
execution case is pending before the Additional Subordinate Judge, Madurai.
39. We, therefore, in exercise of our jurisdiction, direct the learned trial Judge, to pass
an appropriate order in this behalf. The learned trial Judge may pass an appropriate order in
regard to the amount deposited by respondent No.1 pursuant to the said order dated
07.12.2004 or any other order that may be brought to its notice.
40. This appeal is dismissed with the aforementioned directions with costs payable by
the appellant in favour of respondent No.1.Counsel’s fee is assessed at Rs.50,000/-.
Appeal dismissed.

[2007 (2) TNCJ 185 (SC)]

SUPREME COURT
BEFORE:
S.B. SINHA AND MARKANDEY KATJU, JJ.
MADHISHETTI BALA RAMUL (D) BY LRS. ....Appellants
Versus
LAND ACQUISITION OFFICER ....Respondent
[Civil Appeal No. 2693 of 2007, (Arising out of S.L.P. (Civil) No. 17397 of 2005), decided
on 17th May, 2007]
Land Acquisition Act, 1894, Sections 54, 30 and 25—Land acquired for public
purpose—Market value fixed @ Rs. 75,000/- per acre—Appellants possessing 4 acres 10
guntas land—Award confined to 1 acre 5 guntas only—Balance 3 acres 5 guntas
held to be belonging to Government of A.P.—Dispute and claim— Claimants held
entitled to market value of land acquired at Rs. 60 per sq. yard—Direction of High
Court for payment of enhanced market value @ 12% p.a. and also interest thereupon—
Finding of High Court cannot be faulted—Additional interest @ 15% per annum
directed on the amount awarded for the period 16.3.1979 till 22.12.1991 to meet the
ends of justice. (Paras 3, 4, 9 and 20)
Case law.—(2004)4 SCC 79; (2004) 9 SCC 337; (2002) 3 SCC 463.
Counsel.—Mrs. K. Amareshwari, for the appellants; Mr. Rahul Shukla, for the
respondent.
JUDGMENT
S.B. SINHA, J.—Leave granted.
 2. This appeal is directed against a judgment and order 09.02.2005 passed by a
Division Bench of the Andhra Pradesh High Court whereby and whereunder the appeal
preferred by the respondent herein under Section 54 of the Land Acquisition Act, 1894 (for
short, ‘the Act’) against a judgment and award dated 02.01.1999 passed by the Principal
Senior Civil Judge, Warangal in O.P. No. 72 of 1997 was allowed in part.
3. Certain basic fact of the matter is not in dispute. 42 acres 08 guntas of land situated
in Hanamkonda Village was acquired for a public purpose, namely, excavation of Kakatiya
canal. A draft notification was published in the District Gazette under Section 4 of the
Act for acquisition of 4 acres 10 guntas of the land in Survey No.622 on 16.03.1979.
Possession of the said land was taken over on 18.05.1979. An award was passed by the Land
Acquisition Officer on 12.06.1988 fixing the market value of the acquired land @
Rs.75,000/- per acre. The said award, however, was confined to 1 acre 5 guntas only as the
balance 3 acres 5 guntas of land was held to be belonging to the Government of Andhra
Pradesh. A writ petition filed there against, which was marked as Writ Petition No. 10387 of
1989, was allowed by the High Court of Andhra Pradesh by a judgment and order dated
17.11.1989 directing the Collector to refer the dispute to the Court in terms of Section 30 of
the Act. However, later on, it was found by the respondent that the entire 4 acres 10 guntas of
land belonged to the appellants.
4. The Parliament enacted the Land Acquisition (Amendment) Act, 1984 which came
into effect on or about 24.09.1986. As in terms of the said amendment, an award was to be
passed within a period of two years from the date of issuance of the notification, another
notification was issued by the Collector in respect of the said 3 acres 5 guntas of land on or
about 23.12.1991. In respect of the said area, another award was passed by the Land
Acquisition Officer at the same rate, namely, Rs.75,000/- per acre with all the statutory
benefits except additional market value. When a writ petition was filed before the High
Court by appellants, which was marked as Writ Petition No. 16220 of 1994, by its judgment
dated 18.12.1995 the High Court directed the Land Acquisition Officer to grant additional
market value in terms of Section 23(1)(a) of the Act and interest as per Section 34 thereof
from the date of taking possession, pursuant whereto and in furtherance whereof a
supplemental award was passed on 12.06.1998. A reference was made by appellants in
terms of Section 18 of the Act and by a judgment and order dated 02.01.1999, the Principal
Senior Civil Judge awarded compensation for acquisition of the said land @ Rs.60/- per
square yard as against the claim of Rs.150/- per square yard. However, the learned Judge
granted additional market value and interest from the date of taking possession till the
date of award, holding :
“In the result it is ordered as follows :
(i) The claimant is entitled to market value of the acquired land at Rs. 60/- per sq.
yard.
(ii) The claimant is entitled to solatium at 30% on the enhanced market value.
(iii) The claimants are also entitled to additional market value at 12% P.A. on the
enhanced market value from 1.05.1979 to 06.05.1994.
(iv) The claimant is entitled to interest @ 9 % p.a. for one year from 18.05.1979 and @
15% p.a., thereafter on the enhanced market value till the payment is made or
deposited.
The reference is answered accordingly.”
 5. An appeal was preferred thereagainst by respondent and by reason of the impugned
judgment, the High Court held that appellants are not entitled to additional market value
and interest from the date of taking of the possession till the date of the award.
6. Mrs. K. Amareshwari, the learned senior counsel appearing on behalf of appellants,
would submit that having regard to the fact that Section 23 (1)(a) of the Act was introduced
by the Amending Act 68 of 1994 providing for additional market value @ 12% per annum
from the date of taking possession till the date of the award whichever is earlier,
Appellants became entitled thereto with effect from 18.05.1979.
7. It was contended that possession having been taken in terms of the provisions of the
Act, and furthermore having regard to the fact that the High Court of Andhra Pradesh issued
a direction in that behalf in its judgment dated 28.12.1995 passed in Writ Petition No. 16220
of 1994 and the Land Acquisition Officer having granted the same, amount could not have
been reduced in view of Section 25 of the Act.
8. Mr. Rahul Shukla, learned counsel appearing on behalf of the respondent, on the
other hand, submitted that no compensation is payable for taking possession of the land
de’hors a valid notification under the Act.
9. The short question which, therefore, arises for consideration is as to whether Section
25 of the Act will have any application in the fact of the present case. Two notifications were
issued separately. The second notification was issued as the first notification did not survive.
Valuation of the market rate for the acquired land, thus, was required to be determined on the
basis of the notification dated 23.12.1991. The earlier notification lost its force. If the
notification issued on 16.03.1979 is taken into consideration for all purposes, the subsequent
award awarding market value of the land @ Rs. 65/- per square yard cannot be sustained. As
the said market value has been determined having regard to the notification issued on
23.12.1991, possession taken over by respondent in respect of 3 acres 5 guntas of land,
pursuant to the said notification dated 16.03.1979 was in the eye of law, therefore, illegal.
The High Court evidently directed grant of additional market value @ 12% per annum on
the enhanced market value from the date of the publication of the notification dated
23.12.1991 as also interest thereupon from the said date instead and place of 18.05.1979.
We generally agree therewith.
10. The findings of the High Court cannot be faulted in strict sense of the law. We
generally agree therewith.
11. In R.L. Jain (D) By L.Rs. v. DDA and Others, (2004) 4 SCC 79, a three-Judge
Bench of this Court, opined :
“11. In order to decide the question whether the provisions of Section 34 of the Act
regarding payment of interest would be applicable to a case where possession has
been taken over prior to issuance of notification under Section 4 (1) of the Act, it is
necessary to have a look at the scheme of the Land Acquisition Act. Acquisition
means taking not by voluntary agreement but by authority of an Act of Parliament
and by virtue of the compulsory powers thereby conferred. In case of acquisition
the property is taken by the State permanently and the title to the property vests in
the State.”
12. Noticing the provisions of the Act it was held that possession can be taken
over only after an award is made. It was observed :
 “Section 17 is in the nature of an exception to Section 16 and it provides that in
cases of urgency, whenever the appropriate Government so directs, the Collector,
though no such award has been made, may, on the expiration of fifteen days from
the publication of the notice mentioned in Section 9 (1), take possession of any
land needed for a public purpose and such land shall thereupon vest absolutely in
the Government, free from all encumbrances. The urgency provision
contained in Section 17 (1) can be invoked and possession can be taken over only
after publication of notification under Section 9 (1) which itself can be done
after publication of notification under Sections 4 (1) and 6 of the Act. Even here in
view of sub-section (3-A) the Collector has to tender 80 per cent of the estimated
amount of compensation to the persons interested/entitled thereto before
taking over possession. The scheme of the Act does not contemplate taking over of
possession prior to the issuance of notification under Section 4(1) of the Act and
if possession is taken prior to the said notification it will be dehors the Act. It is for
this reason that both Sections 11(1) and 23(1) enjoin the determination of the
market value of the land on the date of publication of notification under Section
4(1) of the Act for the purpose of determining the amount of compensation to be
awarded for the land acquired under the Act.”
It was furthermore held :
“12. The expression the Collector shall pay the amount awarded with interest
thereon at the rate of nine per centum per annum from the time of so taking
possession until it shall have been so paid or deposited should not be read in
isolation divorced from its context. The words such compensation and so taking
possession are important and have to be given meaning in the light of other
provisions of the Act. Such compensation would mean the compensation
determined in accordance with other provisions of the Act, namely, Sections 11
and 15 of the Act which by virtue of Section 23 (1) mean market value of the land
on the date of notification under Section 4 (1) and other amounts like statutory
sum under sub-section (1-A) and solatium under sub-section (2) of Section 23. The
heading of Part II of the Act is Acquisition and there is a sub-heading Taking
Possession which contains Sections 16 and 17 of the Act. The words so taking
possession would therefore mean taking possession in accordance with Section
16 or 17 of the Act. These are the only two sections in the Act which
specifically deal with the subject of taking possession of the acquired land. Clearly,
the stage for taking possession under the aforesaid provisions would be reached
only after publication of the notification under Sections 4(1) and 9 (1) of the Act. If
possession is taken prior to the issuance of the notification under Section 4(1) it
would not be in accordance with Section 16 or 17 and will be without any authority
of law and consequently cannot be recognised for the purposes of the Act. For
parity of reasons the words from the date on which he took possession of the land
occurring in Section 28 of the Act would also mean lawful taking of possession in
accordance with Section 16 or 17 of the Act. The words so taking possession can
under no circumstances mean such dispossession of the owner of the land which
has been done prior to publication of notification under Section 4 (1) of the Act
which is dehors the provisions of the Act.”
It was observed :
 “18. In a case where the landowner is dispossessed prior to the issuance of
preliminary notification under Section 4(1) of the Act the Government merely
takes possession of the land but the title thereof continues to vest with the
landowner. It is fully open for the landowner to recover the possession of his land
by taking appropriate legal proceedings. He is, therefore, only entitled to get rent or
damages for use and occupation for the period the Government retains
possession of the property. Where possession is taken prior to the issuance of the
preliminary notification, in our opinion, it will be just and equitable that the
Collector may also determine the rent or damages for use of the property to which
the landowner is entitled while determining the compensation amount payable to
the landowner for the acquisition of the property. The provisions of Section 48 of
the Act lend support to such a course of action. For delayed payment of such
amount appropriate interest at prevailing bank rate may be awarded.”
13. Yet again in Lila Ghosh (Smt.) (Dead) Through L.R. Tapas Chandra Roy etc. v.
State of West Bengal etc., (2004) 9 SCC 337, this Court held :
“19. Even though the authority in Shree Vijay Cotton & Oil Mills Ltd. appears to
support the claimants, it is to be seen that apart from mentioning Sections 28 and
34, no reasons have been given to justify the award of interest from a date prior to
commencement of acquisition proceedings. A plain reading of Section 34 shows
that interest is payable only if the compensation, which is payable, is not paid or
deposited before taking possession. The question of payment or deposit of
compensation will not arise if there is no acquisition proceeding. In case where
possession is taken prior to acquisition proceedings a party may have a right to
claim compensation or interest. But such a claim would not be either under Section
34 or Section 28. In our view interest under these Sections can only start running
from the date the compensation is payable. Normally this would be from the date
of the Award. Of course, there may be cases under Section 17 where by invoking
urgency clause possession has been taken before the acquisition proceedings are
initiated. In such cases, compensation, under the Land Acquisition Act, would be
payable by virtue of the provisions of Section 17. As in cases under Section 17
compensation is payable interest may run from the date possession was taken.
However, this case does not fall into this category.”
14. In this case, however, the appellants herein were dispossessed pursuant to a
notification which for one reason or other could not be given effect to. Another notification
under Section 4 of the Act had to be issued. The said notification was held to be not invalid.
The State put forward the claim in respect of a portion of a property which it could not do.
Possession must be obtained under a valid notification.
15. The Land Acquisition Officer took possession of the land on the basis of a
notification which did not survive. Respondent could not have continued to hold possession
of land despite abatement of the proceeding under the 1984 Act. It was directed to be
decided by the High Court upon a reference made by the Collector in terms of Section 30 of
the Act. The State, therefore, itself realized that its stand in regard to the ownership of 3
acres and 5 guntas of land was not correct. It, therefore, had to issue another notification
having regard to the provisions contained in the Land Acquisition (Amendment) Act,
1984. Whereas the High Court may be correct in interpreting the question of law in view of
the decision of this Court, but the same would not mean that Appellants would not get
anything for being remaining out of possession from 1979 to 1991.
 16. Mrs. Amareshwari relied upon Section 25 of the Act which is as under :
“25. Amount of compensation awarded by Court not to be lower than the amount
awarded by the Collector.—The amount of compensation awarded by the Court
shall not be less than the amount awarded by the Collector under Section 11.”
17. Section 25 of the Act merely prohibits that total amount of the award granted by
the Collector cannot be reduced. Section 25 which has undergone an amendment in the year
1984, thus, merely lays down that the amount of compensation awarded by the
reference Court shall not be less than the amount awarded by the Collector, and in no
circumstances the amount awarded by the Collector can be reduced. What is an award is a
total sum and not the ingredients contained therein. An award made by the Collector is in the
form of an offer. It is in that sense only that the amount contained therein cannot be reduced.
18. It is not the case of the appellants that the total amount of compensation stands
reduced. If it had not been, we fail to understand as to how Section 25 will have any
application in the instant case. Furthermore, Section 25 being a substantive provision will
have no retrospective effect. The original award was passed on 08.02.1981, Section 25, as it
stands now, may, therefore, not have any application in the instant case.
19. In Land Acquisition Officer-cum-DSWO, A.P. v. B.V. Reddy and Sons, (2002) 3
SCC 463, this Court opined that Section 25 being not a procedural provision will have no
retrospective effect, holding :
“6. Coming to the second question, it is a well-settled principle of construction that
a substantive provision cannot be retrospective in nature unless the provision
itself indicates the same. The amended provision of Section 25 nowhere indicates
that the same would have any retrospective effect. Consequently, therefore, it
would apply to all acquisitions made subsequent to 24-9-1984, the date on
which Act 68 of 1984 came into force. The Land Acquisition (Amendment) Bill of
1982 was introduced in Parliament on 30-4-1982 and came into operation with
effect from 24-9-1984.”
20. In the peculiar facts and circumstances of the case, although the proper course for
us would have to remand the matter back to the Collector to determine the amount of
compensation to which the Appellants would be entitled for being remained out of possession
since 1979, we are of the opinion that the interest of justice would be met if this appeal is
disposed of with a direction that additional interest @ 15% per annum on the amount
awarded in terms of award dated 02.01.1999 for the period 16.03.1979 till 22.12.1991,
should be granted, which, in our opinion, would meet the ends of justice.
21. The appeal is allowed in part and to the extent mentioned hereinbefore. Appellant
shall not be entitled to costs. Counsel’s fee is assessed at Rs.50,000/- .
Appeal allowed partly.

[2007 (2) TNCJ 193 (SC)]

SUPREME COURT
BEFORE:
S.B. SINHA AND MARKANDEY KATJU, JJ.
COMMISSIONER OF CUSTOMS (PORT), CHENNAI ...Petitioner
 Versus
M/S. TOYOTA KIRLOSKAR MOTOR PVT. LTD. ...Respondent
[Civil Appeal No. 3635 of 2006, decided on 17 May, 2007]
th

Customs Valuation (Determination of Price of Imported Goods) Rules, 1988,

Rules 9 (1)(c) and 3—Customs Act, 1962—Sections 2 and 14—Import of capital goods
and parts thereof for establishment of automobile manufacturing plant—Agreement
between Kirloskar Systems Ltd., and Toyota Motor Corporation—Demand for
payment of royalty and know-how fees—Assessing authority’s order for payment of
royalty and licence fee—On appeal CEST held, there is no legal sanction for adding this
payment also price paid in order to arrive at transaction value—Held; CEST not
committed any error in arriving its decision—Appeal dismissed.
(Paras 3, 7, 9, 12 and 39)
Case law.—(1997)9 SCC 738; 2007 (2) Scale 459; (2000) 3 SCC 472; (1995) Supp.
(2) SCC 372.
Counsel.—Mr. Gopal Subramanium, Additional Solicitor- General of India, for the
appellant; Mr. R. Parthasarthy, for the respondent.
JUDGMENT
S.B. SINHA, J.—Leave granted.
2. This appeal is directed against a final order dated 07.12.2005 passed by the
Customs, Excise and Service Tax Appellate Tribunal (for short, ‘the CESTAT’) passed in
Appeal Nos. C/231/04 and C/949/04 whereby and whereunder the appeal preferred by
respondent herein was allowed and that of appellant herein was dismissed.
3. Kirloskar Systems Limited entered into an agreement with Toyota Motor
Corporation, Japan. It is also a major shareholder in the respondent-Company. For the
purpose of establishing an automobile manufacturing plant, respondent imported some
capital goods and parts thereof.
4. Dispute between the parties revolves round the valuation of the said capital goods
and parts imported by the respondent from Toyota Motor Corporation for manufacture of
automobile in India. Under the agreements entered into by and between the respondent and
the said Toyota Motor Corporation, royalty and know-how fees were to be paid.
5. According to the Revenue such payments were to be added to the invoice value of
the goods so as to arrive at a proper transaction value, in terms of Rule 9(1)(c) of the
Customs Valuation (Determination of Price of Imported Goods) Rules, 1988 (for short, ‘the
Rules’). Payments of royalty, according to the Revenue, have a direct nexus to the imported
goods as the same go into the manufacture of the licensed vehicles and spare parts.
6. Before embarking upon the rival contentions of the parties, we may notice the basic
and undisputed facts of the matter.
7. A Technical Assistance Agreement was entered into by and between Toyota Motor
Corporation and the respondent herein. Some of the payments were required to be made
towards engineering services and for imparting training to its personnel at Japan.
In the said agreement, the terms ‘licensed vehicles’, ‘local parts’, and ‘licensed
products’ have been defined. By reason of the said agreement, the respondent was given
manufacturing licence for the licensed products of Toyota. The licence was to be given on
non-exclusive, non-divisible, non-transferable and non-assignable basis and was not to
include any right to grant sub-licences without the licensor’s prior consent.
 Articles 3 and 4 of the said agreement, which are material for our purpose, read as
under:
“Article 3. Ordinary Assistance
(a) The Licensor shall, in accordance with the formalities and conditions separately
prescribed by it, furnish the licensee, upon its request, with such technical know
how, information, data etc. relating to the licensed products in written, verbal or
any other form, as then are or where used by the Licensor and are then in the
hand of and freely disposable by the Licensor and as are then considered
necessary and applicable by the Licensor for the manufacture of the
licensed products from among those stipulated in appendix-C attached hereto.
(b) Any technical know-how, information, data, etc. furnished to the Licensee by the
Licensor in accordance with the preceding paragraph (a) and all copies thereof
shall, at the licenses expense, be sent back to the Licensor even during the terms
of this agreement, as soon as the Licensor requests their return, considering
the same unnecessary for the licensee, the Licensee shall also impose said
obligation upon its employees, officers and directors who may have the custody
of or access to such know-how information data etc. and those reproduced,
whether those persons are in or out of office.”
Appendix C of the agreement provides for technical know-how, information data, etc.
which were to be furnished by the licensor to the licensee under Article 3 being those which
had separately been designated by the licensor from amongst those specified therein, namely,
for : (i) studying the feasibility of local parts manufacturing, (ii) manufacturing of local parts,
and (iii) production, preparation of licensed products.
Article 4 of the agreement reads as under :
“Article 4. Additional Assistance
(a) At the Licensee’s written request, the Licensor may furnish the Licensee with
manufacturing, engineering and other know-how and information relating to the
licensed products which are not readily available in the licensors records but
which the Licensor is willing to develop especially for the licensee, and
which shall be furnished through such documents and assistance as designated at
the discretion of the Licensor from among those stipulated in appendix D
attached hereto and any other documents and assistance from time to time
designated by the licensor.
(b) In the event of the preceding paragraph (a), the Licensee shall pay the Licensor
all fees, and all costs and expenses incurred by the Licensor in developing and
furnishing such know-how, information, documents and or assistance.
(c) If the assistance rendered under paragraph (a) hereof is technical assistance or
engineering assistance concerning the licensed products, such assistance will be
provided in accordance with the procedures and conditions set forth in Appendix
‘E’ attached hereto.”
Appendix ‘D’ provides for assistance to be furnished by the licensor to the licensee in
terms of Article 4, which are separately designated by the licensor from amongst those
specified therein, namely, for : (i) construction of plant, (ii) production and preparation, and
(iii) pilot production and production model.
 Article 7 provides for basic requirements for manufacture of the licensed products.
Article 11 provides for inspection thereof. Article 16 provides for payment of royalty in the
following terms :
“Article 16. Royalty
(a) The Licensee shall pay the Licensor royalty on all of the licensed products
manufactured by the Licensee while this agreement is effective under Article 30
hereof, in consideration of the license to use the technical know-how,
information, data, etc. furnished by the Licensor under Article 3 hereof. The
amount of the royalty shall be fixed in accordance with paragraphs (a) and (b) of
Article 17 hereof.
(b) The Licensee may deduct from the royalty payments hereunder any
withholding taxes which the Licensee is required under the law of the territory to
pay for the account of the licensor, provided that the Licensee shall pay such
taxes on behalf of and in the name of the Licensor and furnish the Licensor
with proper certificates for the same from the authorities concerned, to enable
the Licensor to obtain credit therefor against its Japanese taxes. Handling
fees or any other expenses incurred in remitting the amount of royalty shall be
for the account of the Licensee and shall not be deducted from the royalty
payments.”
The mode and manner in which calculation of royalty is to be made has been provided
under Article 17, sub-clause (2) whereof is as under :
“(2) With respect to the unit Local Parts (such as engines, transmissions, steering
links and axles), as separately agreed upon by the parties hereto, manufactured by
the Licensee itself during each calendar quarter for sale (i) as spare parts for the
licensed vehicles and or (ii) as original equipment parts and or spare parts for other
vehicles than the licensed vehicles, the Licensee shall pay the Licensor royalty
equivalent to three per cent (3%) of the local value added of those unit Local Parts.
For this purpose, the number of the unit Local Parts subject to royalty shall be
determined at the time of their line off at the factory where they are manufactured,
and the local value added shall be Licensees wholesale or selling prices of those
unit Local Parts minus the following costs and tax, if included therein :
(i) All costs for the KD parts which are incurred until such KD parts have been
brought into the above mentioned factory;
(ii) All costs for such Local Parts as are standard bought out components as used to
manufacture those licensed vehicles and as listed in appendix ‘H’ attached hereto,
which are equivalent to the Licensees cost of production thereof if those are
manufactured by the Licensee itself or the Licensees purchase prices thereof if
those are purchased by the Licensee from third parties and;
(iii) Sales tax, excise tax, commodity tax or any other tax of similar nature (other
than any of such taxes to be refunded to the licensee) imposed directly on the
manufacture, sale or delivery by the Licensee of those unit Local Parts.”
Article 21 provides for patents.
8. Indisputably, in terms of the said agreement, the respondent imported capital goods
from Toyota Motor Corporation for manufacture of Passenger Utility Vehicles. Proceeding
on the basis that the supplier is related to the respondent, the matter relating to valuation
of the said capital goods was referred to the Special Valuation Branch for verification in
regard to acceptance or otherwise of the declared invoice value. The Special Valuation
Branch by reason of a circular dated 06.04.1999 was directed to continue to assess the value
of imports from the related supplier provisionally.
9. Another agreement known as ‘TMSS Overseas Parts Export Agreement’ was
entered into by and between the respondent and the Toyota Motor Management Services
Singapore Pvt. Ltd. The said agreement covered the seal of the TMSS. The Assessing
Authority passed an order in original dated 31.01.2003 holding : (1) In view of Articles 3
and 4 of the agreement, a lump sum amount of J.Y. 1,015,000,325 paid up to 31.10.2002
towards technical know-how should be loaded to the value of goods imported as components,
tools and new capital goods imported from related supplier. (2) The value of components be
arrived at by the adjustments, namely, proportionate addition of lump sum amount and by
loading of 5% royalty. (3) The invoice values of spares/accessories be loaded by 2% on
account of royalty payment and 3% on spares/accessories imported after 01.01.2004.
10. In coming to its conclusions, as noticed hereinbefore, the Assessing Authority
recorded the following findings :
“42. It has already been pointed out that it is Toyota Motor Corporation which
decide what Toyota Products would be sold to TKML and having decided that
TMC had made it mandatory on the part of the importers to use the technical
assistance agreement and thus it can be concluded that import of Toyota Products
is subject to conditions related to the use of TAA.
43. Thus in terms of Rule 9 (1) (c) of the CVR 88, Royalties and license fees
related to the imported goods that the buyer is required to pay, directly or
indirectly, as a condition of the sale of the goods being valued shall be added to the
extent that such royalties and fees are not included in the price actually paid or
payable for the imported goods.
xxx xxx xxx
46. Since the goods were imported from the supplier-cum- collaborator (and their
subsidiaries) who transferred the technical know-how and the licensee to use their
technology for which the foreign collaborator receives the royalty on the sale
proceeds of the finished products the value of the imported goods will naturally be
influenced by the relationship as well as the collaboration agreement.
47. The very fact that royalty is paid to the supplier on locally manufactured
products, makes it clear that the manufacture of such products is dependent upon
the Technical know-how/ Technology/ Licence/ Patent available with the
supplier which may be transferred either in the collaboration agreement or which
may be inherent in the goods supplied. Otherwise, there is no rationale for
payment of royalty in a locally manufactured products which will not be the case if
the transaction involves outright sale of equipment/machinery/component etc.
48. The logical conclusion is that the royalty is relatable to the imported goods as
the royalty is nothing but an inherent condition to the transaction. Hence, the
royalty payable by the importers to their collaborator/supplier is includible in the
assessable value of the imported goods as per Rule 9 (i) (c) of the CVR 88.”
11. An appeal preferred thereagainst by the respondent before the Commissioner of
Customs was dismissed, holding :
 “(a) Royalty is not to be added to the value of components parts such as Unit Local
Parts and KD Parts.
(b) Royalty is to be added to the value of components parts falling under the
category of other than Unit Local Parts.
(c) TKH is to be added only to the value of capital goods and tools imported from
related supplier during the tenure of the agreement and should be apportioned to
the total value of such goods.
(d) TKH is not to be added to the value of the components.
(e) Remaining portion of the Order-in-Original remains unaltered.”
12. Aggrieved by and dissatisfied therewith, both the parties preferred appeals there-
against before CESTAT. By reason of the impugned judgment, CESTAT held :
“As regards royalty which goes under “ordinary assistance” relevant article of the
agreement stipulates that upon request the foreign supplier shall furnish to the
importer such technical know-how, information, data relating to the licensed
products. The licensed products are the automobile to be manufactured in India
under the agreement as well as specific parts. It is to be seen that the technical
know-how, information etc. to be furnished are for studying the feasibility of Local
Parts manufacturing, for manufacturing of local parts, for production preparation of
licensed products etc. What is important is that none of assistance is in relation to
the goods under import. Further, royalty is to be computed at the agreed
percentage of local value addition of vehicle manufactured under licence or unit
local parts manufactured and sold or exported. Thus, the computation also has
no bearing upon the imported goods or their value. In the agreement under question
or the import of goods, there is nothing indicating that royalty payment is a
condition of the sale of the imported goods. Thus, the requirement of royalty being
a condition of sale also is not satisfied. In view of these, we are of the opinion that
there is no requirement in the present case for adding royalty payment to the price
payable for the purpose of determining the transaction value of the imported
parts. In sum, all payments are towards assistance rendered in India for setting up
the plant. None of this is in relation to the goods under import. Thus, the payments
under ‘lump sum payments heading’ also do not satisfy the requirement under
Rule 9D(c) of the payments being “related to the imported goods” or being a
condition of sale of the goods being value. Thus, there is no legal sanction for
adding this payment also the price paid in order to arrive at the transaction
value.”
13. Mr. Gopal Subramanium, the learned Additional Solicitor General of India, would
submit that the agreements entered into by and between the respondent and the said Toyota
Motor Corporation must be read in their entirety, wherefrom it would be evident that the
terms laid down therein are relevant for determining the conditions of import. According
to the learned counsel it must be held to be involving continuous exercise and in view of the
fact that the patent was held by the respondent and furthermore grant of licence and know-
how technology being sine qua non for running the automobile manufacturing plant set up by
the respondent at Bangalore, Articles 3 and 4 of the Agreement have rightly been invoked for
the purpose of determination of the transaction value of the capital goods. Strong reliance, in
this behalf, has been placed by the learned Additional Solicitor General on Collector of
Customs (Preventive), Ahmedabad v. Essar Gujarat Ltd., Surat, (1997) 9 SCC 738.
 14. Mr. R. Parthasarthy, the learned counsel appearing on behalf of the respondent,
on the other hand, would submit that on a proper reading of the decision of this Court in
Essar Gujarat Ltd. (supra), it would appear, that only the costs which were required to be
incurred by the importer before importation of the capital goods had been taken into
consideration for determination of the transactional value of the imported goods. It was
submitted that a conjoint reading of the provisions of Section 14 (1) of the Central Excise
and Salt Act, 1944 and Rules 3, 4 and 9 (1) (c) of the Rules, would clearly show that the
valuation must be relatable to the goods imported, a logical corollary whereof would be that
the same must be payable as a condition of import and not for the purpose of setting up of a
manufacturing plant wherefor goods may be used.
15. Drawing our attention to Articles 3 and 4 of the agreement, the learned counsel
submitted that ordinary assistance and additional assistance provided for therein are in
relation to the manufacturing activities to be carried out in India by the respondent and
the same has nothing to do with the import of the capital goods.
16. It was furthermore submitted that the provisions of the Act and the rules framed
thereunder do not lay down any provision for determination of the value on the basis as to
whether the parties are related or not.
17. The Customs Act, 1962 (for short, ‘the Act’) was enacted to consolidate and
amend the law relating to customs. The terms ‘goods’ and ‘import’ have been defined in
Section 2(22) and Section 2 (23) respectively in the following terms :
“2 (22). “good” includes
(a) vessels, aircrafts and vehicles;
(b) stores;
(c) baggage;
(d) currency and negotiable instruments; and
(e) any other kind of movable property;”
“2(23) “import”, with its grammatical variations and cognate expressions, means
bringing into India from a place outside India;”
Chapter V provides for levy of, and exemption from payment of customs duties.
Section 14 provides for valuation of goods for the purpose of assessment in the following
terms :
“14. Valuation of goods for purposes of assessment.—(1) For the purposes of the
Customs Tariff Act, 1975 (51 of 1975), or any other law for the time being in force
whereunder a duty of customs is chargeable on any goods by reference to their
value, the value of such goods shall be deemed to be—
The price at which such or like goods are ordinarily sold, or offered for sale, for
delivery at the time and place of importation or exportation, as the case may be, in
the course of international trade, where—
(a) the seller and the buyer have no interest in the business of each other; or
(b) one of them has no interest in the business of the other, and the price is the sole
consideration for the sale or offer for sale:
 Provided that such price shall be calculated with reference to the rate of exchange
as in force on the date on which a bill of entry is presented under Section 46, or a
shipping bill or bill of export, as the case may be, is presented under Section 50;”
18. The Central Government in exercise of its power conferred upon it under Section
156 of the Act, made rules known as “Customs Valuation (Determination of Price of
Imported Goods) Rules, 1988.” Rule 3 provides for determination of the method of
valuation, stating:
“Determination of the method of valuation.—For the purpose of these rules,—
(i) the value of imported goods shall be the transaction value;
(ii) if the value cannot be determined under the provisions of clause (i) above, the
value shall be determined by proceeding sequentially through Rules 5 to 8 of these
rules.”
19. How the transaction value would be determined has been laid down in Rule 4 of
the Rules, stating that the same shall be the price actually paid or payable for the goods when
sold for export to India adjusted in accordance with the provisions of Rule 9 of the said rules.
Rule 9 of the Rules provides for determination of transaction value, stating :
“Cost and services.—(1) In determining the transaction value, there shall be added
to the price actually paid or payable for the imported goods,—
(a) the following cost and services, to the extent they are incurred by the buyer but
are not included in the price actually paid or payable for the imported goods,
namely:-
(i) commissions and brokerage, except buying commissions;
(ii) the cost of containers which are treated as being one for customs purposes with the
goods in question;
(iii) the cost of packing whether for labour or materials;
(b) the value, apportioned as appropriate, of the following goods and services where
supplied directly or indirectly by the buyer free of charge or at reduced cost for
use in connection with the production and sale for export of imported goods, to
the extent that such value has not been included in the price actually paid or
payable, namely :-
(i) materials, components, parts and similar items incorporated in the imported goods;
(ii) tools, dies, moulds and similar items used in the production of the imported goods;
(iii) materials consumed in the production of the imported goods;
(iv) engineering, development, art work, design work, and plans and sketches
undertaken elsewhere than in India and necessary for the production of the
imported goods;
(c) royalties and licence fees related to imported goods that the buyer is required to
pay, directly or indirectly, as a condition of the sale of the goods being valued, to
the extent that such royalties and fees are not included in the price actually paid
or payable;
(d) the value of any part of the proceeds of any subsequent resale, disposal or use of
the imported goods that accrues, directly or indirectly, to the seller;
(e) all other payments actually made or to be made as a condition of sale of the
imported goods, by the buyer to the seller, or by the buyer to a third party to
 satisfy an obligation of the seller to the extent that such payments are not
included in the price actually paid or payable.”
20. The issue before us is no longer res integra in view of the decision of this Court in
Commissioner of Customs (Port), Kolkata v. M/s. J.K.Corporation Limited, 2007 (2) Scale
459, wherein it is stated:
“ 9. The basic principle of levy of customs duty, in view of the afore-mentioned
provisions, is that the value of the imported goods has to be determined at the time
and place of importation. The value to be determined for the imported goods
would be the payment required to be made as a condition of sale. Assessment
of customs duty must have a direct nexus with the value of goods which was
payable at the time of importation. If any amount is to be paid after the
importation of the goods is complete, inter alia by way of transfer of licence or
technical know-how for the purpose of setting up of a plant from the machinery
imported or running thereof, the same would not be computed for the said
purpose. Any amount paid for post-importation service or activity, would not,
therefore, come within the purview of determination of assessable value of the
imported goods so as to enable the authorities to levy customs duty or otherwise.
The Rules have been framed for the purpose of carrying out the provisions of the
Act. The wordings of Sections 14 and 14(1A) are clear and explicit. The Rules and
the Act, therefore, must be construed, having regard to the basic principles of
interpretation in mind.”
21.Reliance, as noticed hereinbefore, however, has been placed by the learned
Additional Solicitor General on Essar Gujarat Limited (supra).
22. We may, thus, at the outset, consider the applicability of Essar Gujarat Limited
(supra) in the facts of the present case. In Essar Gujarat Limtied (supra), a plant was
originally installed at Emden, Germany, which went in liquidation in respect whereof a bank
was appointed as receiver of the plant. A tender was floated for sale of the plant on “as is
where is” basis. Essar Gujarat Limited (EGL) made an offer of 26 million. The offer,
however, did not materialize as the Central Government’s clearance could not be
obtained. The plant was sold to M/s Teviot Investments Limited (TIL). EGL entered into a
contract with TIL for purchase of the Direct Reduction Iron Plant on the terms and
conditions mentioned therein. Another agreement was also entered into in respect thereof.
EIL intended to enhance the capacity of the plant for which a Collaboration Agreement was
entered into by and between EIL and M/s. Voeist Alpine AG (VA), the relevant provisions
whereof were as under :
“EGL will set up at Hazira, Gujarat, a gas-based Direct Reduction (DR) Plant
which is to be re-engineered for a rated capacity of 8,80,000 tpy of Hot Briquetted
Iron (HBI) and for this purpose decided to buy the existing gas-based Dr plant of
Nohddeutsche Ferrowerke (Mord Ferrd) located at Emden, West Germany, which
had a rated capacity of 8,00,000 tpy DRI under the prevailing operating conditions
at Emden based on the Midrex Process and to incorporate Hot Discharge and Hot
Briquetting facilities.”
23. In the said agreement it was stipulated that the collaborator (VA) had been holding
the construction licence and rights to use patents from Midrex International B.V. for
marketing, sale, design and construction of the Midrex plants at Hazira, India.
24. This Court noticed Articles 3 and 10 of the agreement in question in paragraphs 7
and 8 of the judgment, which read as under:
 “7. In Article 3 of the agreement under the heading Midrex Process Licence and
Technical Services it was provided that in addition to the services being provided
by V.A., Midrex will provide certain technical services to V.A. or to EGL in
connection with transfer of technology covered under the process licence
agreement attached to in Annexure 12 of the agreement. The services included:
(a) basic engineering package for the hot discharge and hot briquetting system;
(b) advice to Essar on optimum utilisation of iron oxide lump ore and iron oxide
pellets;
(c) provide information and documentation to allow Essar to implement
improvements in plant design and/or operating procedures which have
been developed by Midrex or other Midrex Process Licensees;
(d) provide continuing information to Essar on operating results from other
Midrex Plants to assist Essar in optimizing plant-operating efficiency
including operating reports, operation bulletins and operation seminars.
8. Article 10 of the agreement is as under:
Article 10: Contract Dhill:
In consideration of fulfilment by Collaborator of its obligations under this
Agreement, Essar shall pay to Collaborator as below:
Services to be provided outside India:
10.1.1. Process licence and allied technical services DM (German Marks).
10.1.1.1.Process licence fee payable to MIDREX Corporation for the right to use
the Midrex process and patents DM 20,00,000 lump sum.
10.1.1.2. Cost of technical services provided under Article 3 in connection with
Midrex process DM 1,01,00,000 lump sum.
Technical Services:
10.1.2.1. Payment for engineering and consultancy fee as specified under this
agreement DM 2,31,00,000 lump sum.
10.1.2.2. Payment for theoretical and practical training outside India DM
22,00,000 lump sum
Total DM 3,74,00,000 lump sum.”
25. Paragraph 10 of the agreement, therefore, had two components : (i) Services to be
provided outside India; and (ii) Technical Services. Noticing the terms subject to which the
licence was granted in favour of EGL as also the agreements with Midrex and VA, this Court
observed :
“This agreement with V.A. recites that the plant, when it was bought, had a rated
capacity of 8,00,000 tpy DRI under the prevailing operating conditions based on
the Midrex Process. It was recited that the Collaborator (V.A.) was holding
construction licence and rights to use patents from Midrex for marketing, sale,
design and construction of the Midrex Plants at Hazira, India. The services that
were to be rendered by V.A. would also include technical services in connection
with the Midrex Process and engineering services necessary for this purpose.
The Collaborator agreed to use Midrex construction and process licence for this
project at Hazira, India. It was recorded that EGLs contract with Midrex had been
annexed to the contract with the Collaborator.”
 26. In the aforementioned fact situation, a contention raised on behalf of the EGL that
the pre-condition for obtaining a licence was not the condition of sale was rejected, holding
that without the same, the plant would be of no use to EGL, wherefor the overriding clause
was inserted showing that the same was a condition of sale.
27. It was in the aforementioned premise, payments made to Midrex by way of licence
fee was held to be liable to be added to the price actually paid to TIL for purchase of the plant
by EGL. Construing the provisions of Section 14 of the Act read with Rule 9 of the
Rules, it was held :
“18. The entire purpose of Section 14 is to find out the value of the goods which
are being imported. The EGL in this case was purchasing a Midrex Reduction
Plant in order to produce sponge iron. In order to produce sponge iron, it was
essential to have technical know-how from Midrex. It was also essential to have an
operating licence from them. Without these, the plant would be of no value.
That is why the precondition of a process licence of Midrex was placed in the
agreement with TIL. It will not be proper to view that agreement with TIL in
isolation in this case. The plant would be of no value if it could not be made
functional. EGL wanted to buy the plant in a working condition. This could only be
achieved by paying not only the price of the plant, but also the fees for the licence
and the technical know-how for making the plant operational. Therefore, the value
of the plant will comprise not only the price paid for the plant but also the price
payable for the operation licence and the technical know-how. Rule 9 should be
construed bearing this in mind.”
28. This Court noticed several curious aspects of the three agreements, but
ultimately held that whereas the amounts payable in terms of clauses 10.1.1.1, 10.1.1.2 and
10.1.2.1 were to be taken into consideration for the purpose of determining the transactional
value, 10% of the amount, however, for payment of engineering and consultancy fee as
specified under the agreement was held to be payable by way of guess work.
29. Therefore, law laid down in Essar Gujarat Limited (supra) and J.K. Corporation
Limited (supra) are absolutely clear and explicit. Apart from the fact that Essar Gujarat
Limited (supra) was determined on the peculiar facts obtaining therein and furthermore
having regard to the fact that the entire plant on “as is where is” basis was transferred subject
to transfer of patent as also services and technical know-how needed for increase in the
capacity of the plant, this Court clearly held that the post-importation service charges were
not to be taken into consideration for determining the transactional value.
30. The observations made by this Court Essar Gujarat Limited (supra) in
paragraph 18 must be understood in the factual matrix involved therein. The ratio of a
decision, as is well-known, must be culled out from the facts involved in a given case. A
decision, as is well-known, is an authority for what it decides and not what can logically be
deduced therefrom. Even in Essar Gujarat Limited (supra), a clear distinction has been made
between the charges required to be made for pre-importation and post-importation. All
charges levied before the capital goods were imported were held to be considered for the
purpose of computation of transaction value and not the post importation one. The said
decision, therefore, in our opinion, is not an authority for the proposition that irrespective of
nature of the contract, licence fee and charges paid for technical know-how, although the
same would have nothing to do with the charges at the pre-importation stage, would have to
be taken into consideration towards computation of transaction value in terms of Rule 9(1)
( c) of the Rules.
 31. The transactional value must be relatable to import of goods which a’ fortiori
would mean that the amounts must be payable as a condition of import. A distinction,
therefore, clearly exists between an amount payable as a condition of import and an amount
payable in respect of the matters governing the manufacturing activities, which may not have
anything to do with the import of the capital goods.
32. Article 4 provided for additional assistance in respect of the matters specifically
laid down therein. Technical assistance fees have a direct nexus with the post-import
activities and not with importation of goods.
33. It is also a matter of some significance that technical assistance and know-how
were required to be given not as a condition precedent, but as and when the respondent
makes a request therefor and not otherwise. Appendix C of the agreement relates to
manufacture of local parts which evidently has nothing to do with the import of the capital
goods. Appendix ‘D’ again is attributable to construction of plant; production
preparation; and pilot production and production model, wherewith the import of capital
goods did not have any nexus.
34. We may furthermore notice that Interpretative Note appended to Rule 4 also
plays an important role in a case of this nature which reads as under :
“Note to Rule 4
Price actually paid or payable
The price actually paid or payable is the total payment made or to be made by the
buyer to or for the benefit of the seller for the imported goods. The payment need
not necessarily take the form of a transfer of money. Payment may be made by way
of letters of credit or negotiable instruments. Payment may be made directly or
indirectly. An example of an indirect payment would be the settlement by the
buyer, whether in whole or in part, of a debt owed by the seller. Activities
undertaken by the buyer on his own account, other than those for which an
adjustment is provided in Rule 9, are not considered to be an indirect payment to
the seller, even though they might be regarded as of benefit to the seller. The costs
of such activities shall not, therefore, be added to the price actually paid or payable
in determining the value of imported goods.
The value of imported goods shall not include the following charges or costs,
provided that they are distinguished from the price actually paid or payable for the
imported goods:
(a) Charges for construction, erection, assembly, maintenance or technical
assistance, undertaken after importation on imported goods such as industrial
plant, machinery or equipment;
(b) The cost of transport after importation;
(c) Duties and taxes in India.
The price actually paid or payable refers to the price for the imported goods. Thus
the flow of dividends or other payments from the buyer to the seller that do
not relate to the imported goods are not part of the customs value.”
35.The said rule clearly states that the charges or costs envisaged thereunder were
not to be included in the value of the imported goods subject to satisfying the requirement of
the proviso that charges were distinguishable from the price actually paid or payable for the
imported goods.
 36. Interpretation of the said rule came up for consideration before a Bench of this
Court in Tata Iron & Steel Co. Ltd. v. Commissioner of Central Excise & Customs,
Bhubaneswar, Orissa, (2000) 3 SCC 472, wherein it was held:
“This part of the Interpretative Note cannot be so read as to mean that those
charges which are not covered in clauses (a) to (c) are available to be included in
the value of the imported goods. To illustrate, if the seller has undertaken to erect
or assemble the machinery after its importation into India and levied certain
charges for rendering such service the price paid therefor shall not be liable to be
included in the value of the goods if it has been paid separately and is clearly
distinguishable from the price actually paid or payable for the imported goods.
Obviously, this Interpretative Note cannot be pressed into service for calculating
the price of any drawings or technical documents though separately paid by
including them in the price of imported equipments. Clause (a) in the third para of
the Note to Rule 4 is suggestive of charges for services rendered by the seller in
connection with construction, erection etc. of imported goods. The value of
documents and drawings etc. cannot be charges for construction, erection,
assembly etc. of imported goods. Alternatively, even on the view as taken by the
Tribunal on this Note, the drawings and documents having been supplied to the
buyer-importer for use during construction, erection, assembly, maintenance etc. of
imported goods, they were relatable to post-import activity to be undertaken by the
appellant.”
37. Yet again a three-Judge Bench of this Court in Union of India and Others v.
Mahindra and Mahindra Ltd., Bombay, (1995) Supp. (2) SCC 372, opined :
“Ordinarily the Court should proceed on the basis that the apparent tenor of the
agreements reflect the real state of affairs. It is, no doubt, open to the Revenue to
allege and prove that the apparent is not the real and that the price for the sale of
the CKD packs is not the true price, and the price was determined by reckoning or
taking into consideration the lump sum payment made under the collaboration
agreement in the sum of 15 million French Francs.”
It was furthermore held :
“9. On an evaluation of the relevant clauses in the collaboration agreements and the
attendant circumstances, we are of the view that the concurrent judgments of the
High Court at Bombay do not merit interference in this appeal. The crucial aspects
appearing in the case are that the parties were dealing at arms length, that the seller
and the buyer have no interest in the business of each other, that, ordinarily, the
technical know-how of the machine can take in the assembly thereof, that the
CKD packs and spares were supplied to the respondents by the collaborator not
at a concessional price but at the price at which they were sold to others, that, as
agreed to by the respondents, the option was entirely with the respondents to order
the parts as per their requirements, that there was no obligation on the
respondents to purchase CKD packs at all, that long before the supply of the CKD
packs and spares, the royalty due to the collaborators was paid, that there is no
material to show that the supply of the CKD packs or spares weighed with the
parties in fixing the payments under the collaboration agreement but, on the other
hand, the collaboration agreement for the technical know-how and the supply
of CKD packs and spares are independent commercial transactions; in other
words, there existed no nexus between the lump sum payment under the agreement
 for the technical know-how and the determination of the price for supply of
CKD packs or spares. It is by highlighting the above aspects that the learned Single
Judge and the Division Bench concluded that the contention that the price
quoted in the invoices tendered by Mahindra & Mahindra (respondents) does not
reflect the correct price because a part of the value of imported packs and
components was already received by foreign collaborator while determining the
consideration of 15 million French Francs cannot be accepted, and the
collaboration agreement does not support the claim nor was there any material
available to the Assistant Collector to warrant such a conclusion, and, therefore,
resort to Section 14(1)(b) of the Act and Rule 8 of the Customs Valuation Rules is
clearly incorrect and unsustainable and the Assistant Collector was bound to accept
the price mentioned in the invoices for the purpose of assessing the customs duty.”
38. It may be true, as has been contended by the learned Additional Solicitor
General, that Rule 9 (1) (c) of the rules had not been taken into consideration therein, but the
same does not make much difference.
39. For the views we have taken, we are of the opinion that the CESTAT cannot be
said to have committed any error in arriving at its decision in the impugned judgment. There
is, thus, no merit in this appeal, which is dismissed accordingly. In the facts and
circumstances of the case, there shall, however, be no order as to costs.
Appeal dismissed.

[2007 (2) TNCJ 212 (SC)]

SUPREME COURT
BEFORE:
S.B. SINHA AND MARKANDEY KATJU, JJ.
GANNMANI ANASUYA AND OTHERS ....Appellants
Versus
PARVATINI AMARENDRA CHOWDHARY AND OTHERS ...Respondents
[Civil Appeal No. 7318 of 2000, decided on 17th May, 2007]
(A) Limitation Act, 1963—Articles 3 and 5—Indian Partnership Act, 1932—
Article 113—Transfer of Property Act, 1894—Section 45—Suit for partition and
rendition of fair account of poultry business—Also future profits thereupon—Trial
Judge rightly partitioned the suit property—Settlement of account ordered after
taking into consideration Ex. B-8. (Paras, 2, 11, 17 and 30)
Important Point
Question as to whether the business was a joint venture or not being a question of fact.
(B) Code of Civil Procedure, 1908—Order XLI, Rule 31—Point for consideration
—Extent of share of parties—Question requires fresh consideration by High Court.

It was for the High Court to frame appropriate points for its determination in the light
of the submissions made on behalf of appellants in terms of Order XLI, Rule 31 of the Code
of Civil Procedure. The High Court failed to address itself on the said issue. Thus, apart from
Issues Nos. 2 and 4, other points which for its consideration including the extent of the share
of plaintiffs and defendant No. 1 were required to be specifically gone into particularly in
view of the fact that such a contention had been considered by the learned Trial Judge. Issue
Nos. 2 and 4, in our opinion, therefore, require fresh consideration at the hands of the High
Court. (Para 29)
Case law.—2006 (14) Sale 174.
Counsel.—Mr. A. Subba Rao, for the appellants; Mr. T.L.V. Viswanatha Iyer, for the
respondent Nos. 1 and 2; Dr. K.P. Kaylash Nath Pillai, for the respondent No. 1.
JUDGMENT
S.B. SINHA, J.—This appeal is directed against a judgment and decree dated
29.10.1999 passed by a Division Bench of the High Court of Judicature at Andhra Pradesh at
Hyderabad whereby and whereunder an appeal preferred by appellants herein, who were
defendant Nos. 2, 3 and 5 to 7 in the suit, from a judgment and decree dated 23.04.1993 in
O.S. No. 55 of 1985 passed by the Subordinate Judge, Ramchandrapuram, was dismissed.
2. Plaintiffs (respondent Nos. 1 and 2 herein) filed a suit purported to be one for
partition claiming 2/3rd share in the property described in Schedule ‘A’ appended to the
plaint, claiming 4/9th share in the property described in Schedule ‘B’ appended thereto, as
also for a decree directing the defendants 1 to 3 to render fair and proper accounts in respect
of the poultry business which was being run in the Schedule ‘B’ property from the year 1968
onwards as also for future profits thereupon.
3. Plaintiffs are sons of defendant No.1 (respondent No.3 herein). One Narasimha
Murthy was the father of defendant No.1. Appellants herein admittedly are related to the
respondents. Appellant No. 1 is niece of late Narasimha Murthy. Her parents died when
she was very young and unmarried. She was brought up by the said Narasimha Murthy and
married to appellant No.2 herein. Appellant Nos. 1 and 2 allegedly were close to the said
Narasimha Murthy. At the time of marriage, appellant No. 2 was a student of Veterinary
Science at Madras. After securing B.V. Sc. Degree, he got an appointment in the veterinary
department and later on became a B.D.O., and subsequently a Project Officer in the Urban
Community Development of the Hyderabad Municipal Corporation. They allegedly
approached defendant No. 1 and late Narasimha Murthy to invest money in poultry business
at Hyderabad; pursuant whereto investments were made. Allegedly, an arrangement was
entered into by and between the parties that profits of the said business can be shared by late
Narasimha Murthy, on the one hand, and defendant No. 1 and defendant No.2, on the other,
equally after giving due credit to the expenditure and interest to investments made @ 15%
p.a.7 acres and 14 guntas of land was purchased with the moneys advanced by late
Narasimha Murthy and defendant No.1 at Attapur near Hyderabad in the name of late
Narasimha Murthy and the defendant No.2. Poultry business was, thus, started.
4. Narasimha Murthy died in the year 1971. With the profits from the said business
going up, a tube manufacturing plant was also installed. According to the plaintiffs on the
death of the said Narasimha Murthy, they inherited 2/3rd undivided interest of the said
poultry and tubes manufacturing business and appellant No.2 had the remaining 1/3rd share.
The joint family and respondent No.3 herein had no interest in the said business concern.
5. Allegedly, a notice dated 27.08.1985 was served asking the appellants herein to
render accounts in respect of the said businesses, but no reply thereto was given. A suit was
thereafter filed on 12.09.1985. The father of the plaintiffs-respondents Nos.1 and 2, namely,
respondent No.3 herein in his written statement for all intent and purport supported the case
of the plaintiffs alleging that there had been no settlement of accounts in respect of the said
businesses and after the death of Narasimha Murthy, he was entitled to the share to which
his father was entitled to from the said business. It was alleged that further amounts were
also advanced after the death of his father by way of advance as well as interest accrued on
principal amounts advanced. It was further alleged that the infrastructures and the buildings
referred to in Schedule ‘B’ appended to the plaint including the residential house bearing D.
No. 7/26 were constructed with the profit earned from the business. It was, therefore,
contended that they were entitled to 2/3rd share in the business besides the amounts advanced
together with interest at the rate of 15% p.a. and also to a half share in the properties
described in Schedule ‘B’ appended to the plaint together with income thereof.
6. With his written statement, defendant No.1 filed a document as an annexure thereof
showing that a sum of Rs.1,55,535.00 had been advanced during the period 23.08.1968 to
29.05.1971.
7. In her written statement, defendant No. 3 (appellant No. 2 herein) accepted that
during the life time of late Narasimha Murthy, defendant No. 1 partitioned the joint family
properties under a registered deed of partition of the year 1961. But according to him, only
landed properties were partitioned keeping the family house and vacant sites at Pulagurtha
joint. The allegation to the effect that appellants herein approached the defendant No.1 and
late Narasimha Murthy for investment of money in the poultry business or that they invested
any amount on the premise that the profits arising out of the said business can be shared by
late Narasimha Murthy and defendant No. 1 and the defendant No.2 equally after giving due
credit to the expenditure and interest to investments made at 15% p.a. was denied. The other
allegations made in the plaint were also disputed. A plea that the suit was barred by
limitation was also taken.
8. There is no document to show that any partnership came into being by and between
the parties and/or their predecessors in interest.
9. It is, however, not in dispute that after the suit was filed, an Advocate Commissioner
was appointed for making an inventory of the poultry farm. It was stated that late Narasimha
Murthy merely advanced a sum of Rs. 5,000/- and as a good gesture of goodwill, his name
was included as one of the vendees along with defendant No. 2 in the purchase of the
property by reason of the said deed of sale dated 02.12.1970. According to appellants,
Narasimha Murthy had never shown any interest in the said property as a result whereof the
business became exclusively theirs and the same was accepted by late Narasimha Murthy.
Even if the said allegations are correct, Narasimha Murthy would only have equal share in
the land covered by the said sale deed.
10. M/s. Anasuya Poultry Farm or M/s. Anasuya Plastics were the business concerns
started by the defendant No.2 (appellant No. 1 herein) with her own money and late
Narasimha Murthy or respondent No.3 had no interest therein. It was furthermore
contended that for carrying out the poultry business, a shed had been constructed by
defendant No.2 by obtaining loans from the State Bank of India and neither Narasimha
Murthy nor the defendant No.1 even objected thereto. The business, therefore, was a
proprietary concern of the appellant No.1 herein. Although separate written statements were
filed by the defendant No.4 and defendant Nos. 5 to 7, it may not be necessary to consider the
same. Defendant No. 4 in her written statement relinquished her share.
11. A large number of issues were framed by the learned trial Judge. The learned trial
Judge by reason of his judgment dated 23.04.1993 passed a preliminary decree directing
partition of the properties described in Schedule ‘A’ appended to the plaint into three equal
shares by metes and bounds and allotted two shares to the plaintiffs and furthermore directed
partition of the properties described in Schedule ‘B’ appended to the plaint into nine
equal shares by metes and bounds and allotted four shares to the plaintiffs. Appellant Nos.
1 and 2 herein as also respondent No. 3 herein were also directed to render fair and proper
accounts in respect of poultry business from 1968 onwards.
12. Appellants herein (defendant Nos. 2, 3, 5 to 7) preferred an appeal thereagainst
before the High Court, which has been dismissed by reason of the impugned judgment.
13. The High Court having regard to the contentions raised by parties formulated the
following questions for its consideration :
“(1) Whether the poultry business carried on by the appellants is a joint
venture?
(2) Whether there was a settlement of account under Ex. B8?
(3) Whether the respondents are entitled to the share of defendant No. 47?; and
(4) Whether the suit is barred by limitation.”
14. Mr. A. Subba Rao, the learned counsel appearing on behalf of the appellants,
would submit that the learned trial Judge as also the High Court committed a serious error
insofar as they failed to take into consideration the effect of Ex.B-8, which categorically goes
to show that the accounts had been settled by and between the parties on 30.05.1979. The
learned counsel urged that it may be true that no averment was made in the written statement
in regard to the said document, but in view of the fact that defendant No. 1 (respondent No. 3
herein) having admitted the execution thereof, the same should have been taken into
consideration for the purpose of determining the issue of limitation, if not for other
purposes.
15. The learned counsel would submit that the High Court has also not bestowed any
consideration in respect of the execution of deed of partnership dated 06.03.1978 entered into
by and between the appellants with her daughter wherein defendant No.1 (respondent
No.3) is a witness.
16. In any event, the learned counsel argued, there is nothing on record to show as to
how the High Court came to a conclusion that the plaintiffs and defendant No.1 had 2/3rd
share in the business venture. The learned counsel submitted that the fact that defendant
No.1 (respondent No.3) was himself an Engineering Graduate, there was absolutely no
reason as to why he had not asked for an account annually and having regard to the fact that
the partnership was allegedly entered into in the year 1978, the suit was ex facie barred by
limitation.
17. Mr. T.L.V. Viswanatha Iyer, the learned counsel appearing on behalf of the
plaintiffs (respondent Nos. 1 and 2), on the other hand, submitted that although the question
in regard to the extent of share had been raised before the learned trial Judge, the same was
not done before the High Court and, thus, the same should not be permitted to be raised
before us. According to the learned counsel as the appellants herein were not in a position to
make any investment and a total sum of Rs.1,55,535/- was advanced by defendant
No.1, towards the joint venture, a suit for rendition of accounts was maintainable. The
judgment of the trial Court, according to the learned counsel, was unassailable, in regard
to the question of limitation. The learned counsel would contend that Ex.B-8 upon which
reliance has been placed, does not contain any signature of any party nor any amount has
been paid pursuant thereto in full and final settlement of the accounts wherefor the same was
drawn up. It was pointed out that defendant No. 1 was only a manager of the Hindu
undivided family and the business concerns were being run the appellants herein. In view of
the fact that profits were being reinvested into the partnership business, it is idle to contend
that the accounts were settled particularly when the business was found to be a running
one by the learned trial Judge. Even the notice issued by the plaintiffs, it was pointed out,
had not been replied by the defendants. The learned counsel would contend that Article 5 of
the Limitation Act, 1963 would not be applicable in a case of this nature as the same refers to
a dissolution of partnership and as in this case, the provisions of the Indian Partnership Act,
1932 are not attracted, only Article 113 thereof would apply.
18. Dr. K.P. Kaylash Nath Pillai, the learned counsel appearing on behalf of
defendant No. 1 (respondent No.3), would submit that the question as to whether the business
was a joint venture or not being a question of fact, this Court should not exercise its
discretionary jurisdiction under Article 136 of the Constitution of India.
19. So far as issue No. 1 is concerned, we are satisfied that the business was a joint
venture and not the sole proprietary concern of the appellant No. 1, as urged by Mr. Subba
Rao.
20. We may furthermore notice that a concession was made before the High Court that
so far as the immovable property is concerned, having regard to the provisions contained
in Section 45 of the Transfer of Property Act, 1894, Narasimha Murthy had equal share
therein. It is, thus, not necessary for us to go into the said question as correctness or
otherwise of the said concession is not in question before us.
21. However, it is difficult for us to accept the reasonings of the High Court in regard
to Ex. B-8. Plaintiffs (respondent Nos. 1 and 2) were claiming the property as members of
the Hindu undivided family. Admittedly, the interest of the Hindu undivided family was
being looked after by Narasimha Murthy and after his death by defendant No.1 (respondent
No.3). Correspondences were exchanged by and between appellant Nos. 1 and 2 only with
Narasimha Murthy and defendant No.1 (respondent No.3). Yet again admittedly,
defendant No. 1 (respondent No.3) was the manager of the Hindu undivided family. His
dealing with the appellant in regard to the affairs of the business will have a direct bearing in
the matter of determination of the issues raised before us.
22. An admission made by a party can be used against him. When such admission is
made by a Karta of the Hindu undivided family, who is managing the family property as well
as family business affairs, the same would be a relevant fact. When a claim was made by
the plaintiffs for rendition of accounts in the lis, issuance of a document purported to
have been authored by one of the parties, in our opinion, was required to be taken into
consideration.
23. In terms of Section 58 of the Indian Evidence Act, 1872, a thing admitted need not
be proved. [See Shreedhar Govind Kamerkar v. Yesahwant Govind Kamerkar & Anr., 2006
(14) Scale 174]
24. It is also a trite law that when in cross-examination a witness accepts the
correctness of a document, the same would be relevant. A pleading in regard to existence of
a document may be necessary for advancing the case of a party, but when a witness admits a
document to be in his own handwriting without anything more, the effect thereof may have to
be considered having regard to the provisions contained in Section 145 of the Indian
Evidence Act, 1872 in terms whereof the only requirement would be that his attention is
drawn before a writing can be proved. These relevant facts have not been considered by the
High Court. The High Court merely proceeded on the basis that Ex. B-8 did not contain
anybody’s signature. If the defendant No. 1 accepted the contents of the said document,
which, according to him, were noted by him from the books of accounts, authenticity thereof
is not in question, and, thus, even in absence of books of accounts, relevant pages whereof
were found to have been torn, the High Court ought to have taken the same into
consideration as well as the admission on the part of the defendant No. 1 and the effect
thereof. Such an admission could be taken into consideration both for the purpose of arriving
at a finding in regard to the fact as to whether a full and final settlement of accounts had been
arrived at, which was a relevant fact as also for determining the question of limitation.
25. There is no document in writing to prove partnership. Accounts had not been
demanded by the plaintiffs or the defendant No. 3 for a long time. Even an oral partnership
had not been proved. What was the subject-matter of the partnership had also not been
considered by the High Court. A share in a joint venture, in absence of any document in
writing, must be determined having regard to the conduct of the parties. The High Court
proceeded on the basis that the plaintiffs and defendant No.1 had equal share in the
property in terms of Section 45 of the Transfer of Property Act, 1882. If the said immovable
property formed assets of the joint venture, the same would be an indicia to determine the
shares held by the parties thereto. Ordinarily, the extent of an involvement made shall be the
criteria for determining the share of the co-entrepreneurs. In absence of terms and conditions
of the joint venture having not been reduced to writing, conduct of the parties how they dealt
with affairs of the business would be relevant.
26. The High Court does not say that the concession made by the learned counsel
appearing on behalf of Appellants was incorrect. In a situation of this nature, particularly
when the limitation issue required determination, Ex. B-8, in our opinion, should have
received serious consideration at the hands of the Courts below.
27. In terms of Section 3 of the Limitation Act, it is for the Court to determine the
question as to whether the suit is barred by limitation or not irrespective of the fact that as to
whether such a plea has been raised by the parties. Such a jurisdictional fact need not, thus,
be pleaded. In any event, the said evidence was admissible for the purpose of
contradicting a witness, which being a relevant fact should have been considered in its proper
perspective. If the contents of Ex. B-8 were accepted, it was not for the High Court to
consider the consequences flowing therefrom, and, thus, but the fact whether the figure(s)
contained therein could be verified from the books of account might not be very relevant.
Whether, it would be in consonance with the pleadings of appellants was again of not much
significance if it can be used for demolishing the case of plaintiffs and defendant No.1 If
the figures contained in Ex. B-8 were accepted, it was for defendant No. 1 to explain the
same and not for appellants. The High Court, in our opinion, thus, committed a manifest error
in not taking into consideration the contents of Ex. B-8 in its proper perspective.
28. At the cost of repetition, we may state that the effect of the said document at least
should have received serious consideration at the hands of the High Court. We cannot accept
the contention of Mr. Iyer that such a question had not been raised. From the impugned
judgment of the High Court, it appears that the said such question had specifically been
raised. The High Court noticed the arguments of the learned Advocate in the following terms:
“Therefore, they have no objection for giving the half share in the property in spire
of 1st respondent expressing his intention to relinquish his right in the half share of
landed property admeasuring Ac. 7-14 guntas in Atapur covered by Ex. B-15.
After the settlement of accounts under Ex. B-8 the appellants obtained loans from
various banks for the purpose of reviving the poultry business and also setting
up of business in plastics. In all the loan transactions, the 1st respondent signed the
loan documents as a guarantor. If really he is interested in the business, he would
have been one of the principal debtors and not a guarantor. That indicates that
 the respondents have no interest in the poultry business carried on by the 1st
appellant. Further the 1st respondent got himself examined on commission as he
does not want to face the Court since his case is false.
As regards the share of the 4th defendant who is the daughter of late Narasimha
Murthy is concerned, the respondents are not entitled to her share as
relinquishment of her share in the property is not evidenced by any document
except Ex.B9 which is not a registered document. Therefore, the respondents
cannot claim the share of the 4th respondent. Since neither late Narasimha Murthy
nor respondent No. 1 obstructed the 1st appellant from carrying on the
business in the half share of Ac.7.14 guntas of land, the appellants are not liable to
account for profits earned by them by their own labour. If really the case of the
respondents is that the poultry business carried on by the appellants is not the
exclusive business of the 1st appellant, at the time of Ex. B-8 they would have
demanded for accounting of the profits. As regards the building constructed in
the site, it is constructed with the money belonging to the 1st appellant and
therefore, the respondents are not entitled for a share in the said building. At the
most the value of the site on which the building is constructed may be awarded to
the member of the joint family on which the corners constructs a building.
The suit for accounts is barred by limitation as the business was closed in 1973. At
the most the respondents are entitled for profits 3 years prior to the filing of the
suit”
29. It was for the High Court to frame appropriate points for its determination in the
light of the submissions made on behalf of appellants in terms of Order XLI, Rule 31 of the
Code of Civil Procedure. The High Court failed to address itself on the said issue. Thus,
apart from Issues Nos. 2 and 4, other points which for its consideration including the
extent of the share of plaintiffs and defendant No. 1 were required to be specifically gone
into particularly in view of the fact that such a contention had been considered by
the learned Trial Judge. Issue Nos. 2 and 4, in our opinion, therefore, require fresh
consideration at the hands of the High Court.
30. For the aforementioned purpose, it may also be necessary for the High Court to
consider the applicability of the relevant articles of the Limitation Act. We, therefore, are
of the opinion that the impugned judgment to the extent aforementioned cannot be
sustained. It is set aside accordingly in part and the matter is remitted to the High Court
for consideration of the matter afresh on the said issues, inter alia, in the light of the
observations made hereinbefore. The High Court shall also formulate appropriate points
for its consideration in terms of Order XLI, Rule 31 of the Code of Civil Procedure and
proceed to hear the appeal on merits on the relevant issues apart from Issue Nos.2 and 4.
This appeal is allowed to the aforementioned extent. In the peculiar facts and circumstances
of the case, there shall be no order as to costs.
Appeal Partly Allowed.

[2007 (2) TNCJ 222 (SC)]

SUPREME COURT
BEFORE:
S.B. SINHA AND MARKANDEY KATJU, JJ.
SMT. YALLAWA AND OTHERS ...Appellants
Versus
NATIONAL INSURANCE CO. LTD. AND OTHERS ...Respondents
[Civil Appeal No. 2674 of 2007, (Arising out of SLP (Civil) No. 17016 of 2006) decided on
16th May, 2007]
(A) Motor Vehicles Act, 1988, Sections 140 and 173—Tractor trailer accident—
Nine persons died in accident—Award of Tribunal directing owner and insurer to
pay Rs. 50,000 each for every deceased—Question—Whether order passed by Tribunal
under Section 144 of Act is appealable?—Held: Yes.
(Paras 2, 3, 4 and 30)
(B) “Award”—Meaning of. (Para 14)
Case law.—(2004) ACJ 35; (2004) 8 SCC 697; 1960 (1) SCR 168; (2003) 3 SCC 524;
(1994) ACJ 74; (1999) 9 SCC 62; (2003) 3 SCC 338; (2004) 3 SCC 297; 2007 (4) Scale 36;
2007 (5) Scale 269; 2001 ACJ 428: (2001) 2 SCC 9
JUDGMENT:
S.B. SINHA, J.—Leave granted.
2. Whether an order passed under Section 140 of the Motor Vehicles Act, 1988 (for
short, ‘the Act’) is an appealable one is the question involved in this appeal which arises out
of a judgment and order dated 04.07.2005 passed by a learned Single Judge of the Karnataka
High Court in M.F.A. Nos. 8227 of 2004 c/w 8234 to 8237, 8239 and 8240 of 2004.
3. The basic facts of the case are not in dispute. Appellants herein are the heirs and
legal representatives of the coolies travelling from Kankanwadi to Saundatti in the State of
Karanataka in a tractor trailer. The said tractor trailer met with an accident allegedly
owing to rash and negligent driving on the part of its driver. Out of 44 persons travelling in
the said tractor trailer, nine persons died and others received serious injuries.
4. Appellants herein filed claim petitions in terms of Section 166 of the Act read with
Section 140 thereof before the Motor Accidents Claims Tribunal (for short, ‘the
Tribunal’). By reason of an order dated 13.09.2004, the learned Tribunal directed both the
owner as also respondent No. 1 (Insurance Company) to deposit a sum of Rs. 50,000/- each
for every deceased within a period of one month.
5. Aggrieved by and dissatisfied therewith, respondent No. 1 herein preferred appeals
before the High Court. One of the contentions raised by the appellants was that the appeals
under Section 173 of the Act were not maintainable, inter alia, on the premise that the said
order dated 13.09.2004 was not an award within the meaning of Section 173 of the Act.
In support of the said contention, reliance was placed on a decision of the Bombay High
Court in Divisional Controller, Maharashtra State Road Transport Corporation v.
Bapu Onkar Chaudhary, (2004) ACJ 35. The High Court, however, in view of the fact that
admittedly the deceased and the injured, who were travelling in the tractor trailer, were
unauthorised passengers and also having regard to the decision of this Court in National
Insurance Co. Ltd. v. V. Chinnamma & Others, (2004) 8 SCC 697, opined that the said
order would be an appealable one.
6. The learned counsel appearing on behalf of the appellants would submit that the
right of appeal is a statutory right and in view of the fact that no adjudication was required to
be made by the Tribunal while passing an order under Section 140 of the Act, the same
would not come within the purview of the definition of the term ‘award’. Reliance has been
placed on British India General Insurance Co., Ltd. v. Captain Itbar Singh and others,
1960 (1) SCR 168 and Sadhana Lodh v. National Insurance Co. Ltd. and another, (2003) 3
SCC 524.
7. The learned counsel appearing on behalf of the respondents, on the other hand,
would support the judgment.
8. Section 140 of the Act is in Chapter X thereof provides for liability to pay
compensation in certain cases on the principle of no fault. An application under Section 140
of the Act is maintainable by way of interim application or otherwise in a proceeding
initiated in terms of Section 166 thereof. Section 166 of the Act, on the other hand, is in
Chapter XII thereof. The said provisions read as under :
“Section 140—Liability to pay compensation in certain cases on the principle of
no fault:
(1) Where death or permanent disablement of any person has resulted from
an accident arising out of the use of a motor vehicle or motor vehicles, the
owner of the vehicle shall, or, as the case may be, the owners of the
vehicles shall, jointly and severally, be liable to pay compensation in
respect of such death or disablement in accordance with the provisions of
this section.
(2) The amount of compensation which shall be payable under sub-section (1)
in respect of the death of any person shall be a fixed sum of [fifty thousand
rupees] and the amount of compensation payable under that sub-section in
respect of the permanent disablement of any person shall be a fixed sum of
[twenty-five thousand rupees].
(3) In any claim for compensation under sub-section (1), the claimant shall not
be required to plead and establish that the death or permanent
disablement in respect of which the claim has been made was due to any
wrongful act, neglect or default of the owner or owners of the vehicle or
vehicles concerned or of any other person.
(4) A claim for compensation under sub-section (1) shall not be defeated by
reason of any wrongful act, neglect or default of the person in respect of
whose death or permanent disablement the claim has been made nor shall
the quantum of compensation recoverable in respect of such death or
permanent disablement be reduced on the basis of the share of such person
in the responsibility for such death or permanent disablement.
(5) Notwithstanding anything contained in sub-section (2) regarding death or
bodily injury to any person, for which the owner of the vehicle is liable to
give compensation for relief, he is also liable to pay compensation
under any other law for the time being in force:
Provided that the amount of such compensation to be given under any other law
shall be reduced from the amount of compensation payable under this section or
under Section 163-A.”
 “Section 166—Application for compensation.—(1) An application for
compensation arising out of an accident of the nature specified in sub-section (1) of
Section 165 may be made—
(a) by the person who has sustained the injury; or
(b) by the owner of the property; or
(c) where death has resulted from the accident, by all or any of the legal
representatives of the deceased; or
(d) by any agent duly authorised by the person injured or all or any of the legal
representatives of the deceased, as the case may be:
Provided that where all the legal representatives of the deceased have not joined in
any such application for compensation, the application shall be made on behalf
of or for the benefit of all the legal representatives of the deceased and the legal
representatives who have not so joined, shall be impleaded as respondents to the
application.
(2) Every application under sub-section (1) shall be made, at the option of the
claimant, either to the Claims Tribunal having jurisdiction over the area in
which the accident occurred or to the Claims Tribunal within the local
limits of whose jurisdiction the claimant resides or carries on business or
within the local limits of whose jurisdiction the defendant resides, and
shall be in such form and contain such particulars as may be prescribed:
Provided that where no claim for compensation under Section 140 is made in
such application, the application shall contain a separate statement to that effect
immediately before the signature of the applicant.
[***]
(4) The Claims Tribunal shall treat any report of accidents forwarded to it
under sub-section (6) of Section 158 as an application for compensation
under this Act.”
9. It is not in dispute that an award of the Tribunal is to be made in terms of Section
168 of the Act. For the said purpose, the Tribunal is required to issue a notice to the insurer
and give the parties an opportunity of being heard. While making an award in terms of
Section 168 of the Act, the procedure laid down under Section 166 of the Act are required
to be complied with. The proviso appended to Section 168 of the Act, however, lays down
that where such application makes a claim for compensation under Section 140 in respect of
the death or permanent disablement of any person, such claim and any other claim (whether
made in such application or otherwise) for compensation in respect of such death or
permanent disablement shall be disposed of in accordance with the provisions of Chapter X
of the Act. Section 140, as noticed hereibefore, provides for no fault liability. It uses the
words “accident arising out of the use of a motor vehicle”, the owner of the vehicle and
when more than two vehicles are involved, “the owners of the vehicles” shall, jointly and
severally, be liable to pay compensation.
10. The said provision, therefore, makes the owners of the vehicles liable but not the
insurer per se. Irrespective of the fact whether a claim petition is required to be adjudicated
under Chapter X or Chapter XII of the Act, it is permissible to raise a defence in terms of
sub-section (2) of Section 149 of the Act. Even it is possible for the owner of the vehicle to
raise a contention that his vehicle being not involved in the accident, he is not liable to pay
any amount in terms of Section 140 of the Act.
11. One of the defences available to the insurer is breach of conditions specified in the
policy. When such a defence is raised, the Tribunal is required to go into the said question.
Section 140 of the Act does not contemplate that an insurance company shall also be liable
to deposit the amount while it has no fault whatsoever in terms of sub-section (2) of Section
147 of the Act.
12. There cannot be any doubt that an appeal is a creation of a statute.
13. It may be noted that Chapter X of the Act provides for no forum for enforcement of
the right under Section 140. The only forum available is in Chapter XII. The right under
Section 140 can only be enforced under Section 168 as an award. An appeal, therefore,
lies under Section 173 against such an award seeking to enforce the right under Section 140.
14. In P. Ramanatha Aiyar’s Law Lexicon 3rd Edn. 2005 at page 428, it is stated :
“”Award” means an arbitration award [Arbitration Act (10 of 1940, Section 2(b)]
“Award” means an interim or a final determination of any industrial dispute or of
any question relating thereto by any Labour Court, Industrial Tribunal or National
Industrial Tribunal and includes an Arbitration award made under Section 10-A.
(Industrial Disputes Act (14 of 1947, Section 2(f).]”
15. In Oriental Insurance Co. Ltd. v. Mohiuddin Kureshi alias Md. Moya and others,
(1994) ACJ 74, a Division Bench of the Patna High Court observed :
“7. Section 140 of the Motor Vehicles Act which is in Chapter X of the said
Act provides for liability to pay compensation on the principle of no fault. An
owner of a vehicle thus would be liable to pay compensation in case death or
permanent disablement to any person has resulted from an accident arising out of
use of a motor vehicle or vehicles and the amount of such compensation in terms
of Section 140 (2) is fixed as Rs. 25,000/- in case of death and Rs. 12,000/- in case
of permanent disablement. Sub-section (3) of Section 140 postulates that the
claimant shall not be required to plead and establish that the death or permanent
disablement in respect of which claim was made was due to any wrongful act,
neglect or default of the owner or owners of the vehicle or vehicles concerned or of
any other person.
xxx xxx xxx
9. Section 141 of the said Act, however, provides that right to claim in terms of
Section 140 shall be in addition to any other right under the provisions of the said
Act or any other law for the time being in force. Sub-sections (2) and (3) of Section
141 of the said Act read thus:
(2) A claim for compensation under Section 140 in respect of death or
permanent disablement of any person shall be disposed of as expeditiously
as possible and where compensation is claimed in respect of such
death or permanent disablement under Section 140 and also in pursuance
of any right on the principle of fault, the claim for compensation under
Section 140 shall be disposed of as aforesaid in the first place.
 (3) Notwithstanding anything contained in Sub-section (1), where in respect of
the death or permanent disablement of any person, the person liable to
pay compensation under Section 140 is also liable to pay compensation in
accordance with the right on the principle of fault, the person so liable shall
pay the first-mentioned compensation and
(a) if the amount of the first-mentioned compensation is less than the amount of the
second-mentioned compensation, he shall be liable to pay (in addition to the
first-mentioned compensation) only so much of the second-mentioned
compensation as is equal to the amount by which it exceeds the first-
mentioned compensation;
(b) if the amount of the first-mentioned compensation is equal to or more than the
amount of the second-mentioned compensation, he shall not be liable to pay
the second-mentioned compensation.
xxx xxx xxx
11. From a conjoint reading of the aforementioned provisions, there cannot
be any doubt that an application under Section 140 of the said Act can be filed
separately. However, Section 166 of the said Act contemplates filing of a
composite application, as is evident from the proviso appended to Sub-section
(2) of Section 166 of the said Act.”
16. The question which is required to be considered is what would be the meaning of
the term ‘award’ when such a contention is raised. Although in a given situation having
regard to the liability of the owner of the vehicle, a claim Tribunal need not go into the
question as to whether the owner of the vehicle in question was at fault or not, but
determination of the liability of the insurance company, in our opinion, stands on a
different footing. When a statutory liability has been imposed upon the owner, in our
opinion, the same cannot extend the liability of an insurer to indemnify the owner, although
in terms of the insurance policy or under the Act, it would not be liable therefor.
17. In a given case, the statutory liability of an insurance company, therefore, either
may be nil or a sum lower than the amount specified under Section 140 of the Act. Thus,
when a separate application is filed in terms of Section 140 of the Act, in terms of Section
168 thereof, an insurer has to be given a notice in which event, it goes without saying, it
would be open to the insurance company to plead and prove that it is not liable at all.
18. Furthermore, it is not in dispute that there can be more than one award particularly
when a sum paid may have to be adjusted from the final award. Keeping in view the
provisions of Section 168 of the Act, there cannot be any doubt whatsoever that an award
for enforcing the right under Section 140 of the Act is also required to be passed under
Section 168 only after the parties concerned have filed their pleadings and have been
given a reasonable opportunity of being heard. A Claims Tribunal, thus, must be
satisfied that the conditions precedent specified in Section 140 of the Act have been
substantiated, which is the basis for making an award.
19. Furthermore, evidently, the amount directed to be paid even in terms of Chapter X
of the Act must as of necessity, in the event of non-compliance of directions has to be
recovered in terms of Section 174 of the Act. There is no other provision in the Act which
takes care of such a situation. We, therefore, are of the opinion that even when objections are
raised by the insurance company in regard to its liability, the Tribunal is required to
render a decision upon the issue, which would attain finality and, thus, the same would be an
award within the meaning of Section 173 of the Act.
20. In British India General Insurance Co. Ltd., (supra), the question which arose for
consideration was as to whether an insurer should be joined as a party in a proceeding under
the Act apart from the provisions of the statute. Therein, the court was considering a claim
under the Motor Vehicles Act, 1939. It was held therein:
“17. Again, we find the contention wholly unacceptable. The statute has no doubt
created a liability in the insurer to the injured person but the statute has also
expressly confined the right to avoid that liability to certain grounds specified in it.
It is not for us to add to those grounds and therefore to the statute for reasons of
hardship. We are furthermore not convinced that the statute causes any hardship.
First, the insurer has the right, provided he has reserved it by the policy, to defend
the action in the name of the assured and if he does so, all defences open to the
assured can then be urged by him and there is no other defence that he claims to be
entitled to urge. He can thus avoid all hardship if any, by providing for a right to
defend the action in the name of the assured and this he has full liberty to do.
Secondly, if he has been made to pay something which on the contract of the
policy he was not bound to pay, he can under the proviso to sub-section (3) and
under sub-section (4) recover it from the assured. It was said that the assured might
be a man of straw and the insurer might not be able to recover anything from him.
But the answer to that is that it is the insurer’s bad luck. In such circumstances the
injured person also would not have been able to recover the damages suffered by
him from the assured, the person causing the injuries”
21. In National Insurance Co. Ltd. v. Jethu Ram and others, (1999) 9 SCC 62, this
Court while construing the provisions of Sections 92-A and 92-B of the Motor Vehicles
Act, 1939, opined :
“2. On a close scrutiny of the aforesaid provisions, we do not find anything
contained therein which would suggest that the liability which accrues under the
provisions of Section 92-A has to be borne by the insurer even if it is ultimately
held that under the policy of insurance, the insurer is not liable to pay the
compensation in question. In our considered opinion, the Tribunal and the High
Court have misread the aforesaid provisions of the Motor Vehicles Act. In the
aforesaid premises, the impugned judgments of the Tribunal and the High Court
cannot be sustained so far as they relate to the liability of the insurer arising under
Sections 92-A and 92-B of the Act.”
22. The decision of this Court in United India Insurance Co. Ltd. v. Lehru and others,
(2003) 3 SCC 338, is not of much assistance in this case. The question which arose for
consideration therein was as to whether in a case where the licence of the driver of the motor
vehicle involved in the accident was fake, the court can direct the insurance company to pay
the amount of the compensation and recover the same from the owner, as the insurance
company is liable to satisfied the award.
23. Lehru (supra) has been taken into consideration in a subsequent decision of this
Court in National Insurance Company Ltd. v. Swaran Singh and others, (2004) 3 SCC 297,
which has in turn been considered in National Insurance Co. Ltd. v. Laxmi Narain Dhut,
2007 (4) Scale 36 and The Oriental Insurance Company Ltd. v. Meena Variyal & Ors., 2007
(5) Scale 269.
 24. The recent decisions of this Court are authorities for the proposition that the
insurance company would not be liable in cases where passengers of a vehicles are not third
parties.
25. In Sadhana Lodh (supra), this Court was concerned with a case where an
application was filed under Articles 226 and 227 of the Constitution of India, despite the fact
that an appeal was maintainable against the award and in that view of the matter, the Court
opined that when an insurer has a right to prefer an appeal on limited grounds available
under Section 149 of the Act, the grounds of challenge cannot be enlarged by filing a petition
under Articles 226 and 227 of the Constitution of India. It was observed therein:
“7. The supervisory jurisdiction conferred on the High Courts under Article 227 of
the Constitution is confined only to see whether an inferior Court or tribunal has
proceeded within its parameters and not to correct an error apparent on the face of
the record, much less of an error of law. In exercising the supervisory power under
Article 227 of the Constitution, the High Court does not act as an appellate Court
or the tribunal. It is also not permissible to a High Court on a petition filed under
Article 227 of the Constitution to review or reweigh the evidence upon which the
inferior Court or Tribunal purports to have passed the order or to correct errors of
law in the decision.”
26. The said decision has also no application to the facts of the present case. So far as
the decision of the Bombay High Court in Bapu Onkar Chaudhari (supra) is concerned, the
High Court proceeded on the basis that in terms of the rules framed by the State of
Maharashtra under the Motor Vehicles Act, an order passed under Section 140 would not
come within the purview of the term ‘award’.
27. In Bapu Onkar Chaudhari (supra), the Bombay High Court appears to have placed
strong reliance on Kaushnuma Begum and Others v. New India Assurance Co. Ltd. and
Others, 2001 ACJ 428 : (2001) 2 SCC 9. In Kaushnuma Begum (supra), this Court was
concerned with the question as to whether the amount of compensation to be paid under
Section 140 of the Act can be deducted from the final amount awarded by the Tribunal and
while doing so, opined :
“20 . “No fault liability” envisaged in Section 140 of the MV Act is distinguishable
from the rule of strict liability. In the former, the compensation amount is fixed and
is payable even if any one of the exceptions to the rule can be applied. It is a
statutory liability created without which the claimant should not get any
amount under that count. Compensation on account of accident arising from the
use of motor vehicles can be claimed under the common law even without the aid
of a statute. The provisions of the M.V. Act permit that compensation paid under
“no fault liability” can be deducted from the final amount awarded by the
Tribunal. Therefore, these two are resting on two different premises. We are,
therefore, of the opinion that even apart from Section 140 of the M.V. Act, a victim
in an accident which occurred while using a motor vehicle, is entitled to get
compensation from a Tribunal unless any one of the exceptions would apply. The
Tribunal and the High Court have, therefore, gone into error in divesting the
claimants of the compensation payable to them.”
28. In Bapu Onkar Chaudhary (supra), the High Court of Bombay observed :
“19. A different phraseology is used in Rules 273 and 281. The Claims Tribunal in
passing orders, is required to record concisely in a judgment the findings of each of
 the issues framed and the reasons for such findings and make an award specifying
the amount of compensation to be paid by the insurers and the owners of the
vehicle, who may be found vicariously responsible for causing the accident and
also the person or persons to whom compensation shall be paid.”
29. The Bombay High Court posed unto itself a wrong question and, thus, misdirected
itself in arriving at the said decision. Its endeavour to draw sustenance of its finding from
the proposition that an order passed under Section 140 of the Act is not an award having
regard to Rule 281 of the Maharashtra Motor Vehicles Rules, 1989 suffers from a manifest
error as the Rule lays down the procedure for filing of an appeal and, thus, by reason thereof
substantive right of appeal vested in a person under a legislative Act cannot be taken away.
30. In our considered opinion, the said decision does not state the law correctly. In our
opinion, an order of the Tribunal awarding compensation under Section 140 of the Act is
appealable under Section 173 as it amounts to an award under Section 173.
31. For the reasons aforementioned, there is no merit in this appeal, which is dismissed
accordingly. However, in the facts and circumstances of the case, there shall be no order as
to costs.
Appeal dismissed.

[2007 (2) TNCJ 233 (SC)]

SUPREME COURT
BEFORE:
S.B. SINHA AND MARKANDEY KATJU, JJ.
R.V. DEV @ R. VASUDEVAN NAIR ...Appellant
Versus
CHIEF SECRETARY, GOVERNMENT OF
KERALA AND OTHERS ...Respondents
[Civil Appeal No. 2536 of 2007, (Arising out of SLP (C) No. 13885 of 2004), decided on 15 th
May, 2007]
(A) Code of Civil Procedure 1908—Order XXXIII, Rules 10 and 11—Suit for
damages—Against State—On premise of losing an eye due to violence of political
vendetta—Suit held to be barred by limitation—Also appellant could not establish that
Police was duty bound to protect him. (Paras 2, 3, and 14)
(B) Code of Civil Procedure, 1908, Order XXXIII, Rule 11—Suit for damages—
Appellant claiming to be an indigent person—Held, Court cannot direct defendant to
pay court-fee.
(Paras 2 and 14)
Important Point
The Court cannot direct the defendant to pay the court-fee and it must be paid by the
plaintiff or the co-plaintiff.
Case law.—AIR 1959 Pat 384.
Counsel.—Mr. A. Raghunath, for the appellant.
JUDGMENT
S.B. SINHA, J.—Leave granted.
 2. Interpretation of the provisions of Order XXXIII, Rule 10 and Order XXXIII, Rule
11 of the Code of Civil Procedure as amended in the State of Kerala is in question in this
appeal which arises out of a judgment and order dated 11.7.20003 passed by the High Court
of Kerala at Ernakulam in CMP No. 1323 of 2003 in A.S. No. 156 of 1994. Appellant herein
filed a suit for damages against the State of Kerala inter alia on the premise that he had lost
an eye having been a victim of violence of political vendetta as he had suffered facial injury
as a result of throwing of an acid bulb on his face. The said suit was filed in terms of Order
XXXIII of the Code of Civil Procedure as he claimed himself to be an indigent person.
The persons accused of throwing acid bulb on the face of the appellant, however, stood
acquitted by a judgment dated 18.2.1981.
3. He filed a suit for damages in the year 1988. The State denied and disputed its
vicarious liability for payment of any damages suffered by the appellant. The suit was
dismissed by the learned subordinate Judge Cherthala by a judgment and decree dated
30.7.1991 inter alia holding :—
(i) The suit was barred by limitation.
(ii) Appellant had not established that the Police was duty bound to give protection to
him.
4. An appeal was preferred thereagainst in the year 1994. The said appeal was also
allowed to be filed by him as an indigent person. The said appeal was dismissed by the High
Court by a judgment and decree dated 13.9.2002 inter alia holding that the suit was rightly
held to be barred by limitation. It was furthermore directed:-
“16. Hence we find that the above appeal is devoid of any merits. Therefore, the
appeal is dismissed confirming the judgment and decree passed by the lower
Court.”
5. A miscellaneous application was filed by the appellant in the said suit purported to
be for clarification of the said direction of the High Court contained in its judgment dated
13.9.2002. The High Court by reason of the impugned judgment refused to do so relying on
some decisions relied on by the parties before it stating:-
“18. It is clear from the above rulings of the various High Courts and this Court
that a person who is permitted to sue as indigent person is liable to pay the court
fee which would have been paid by him if he was not permitted to sue as indigent
person, if he fails in the suit after trial or without trial since the ultimate decision or
the result of the suit and not the manner or mode in which the decision is arrived is
envisaged under Rule 11 of Order XXXIII of the Civil Procedure Code.
19. The counsel for the petitioner submitted that in view of the scheme of Order
XXXIII of the C.P.C. failure in a suit cannot be equated with the dismissal of the
suit since dismissal has been dealt with separately under clauses (a) and (b) of
Rule 11. According to him, failure should be a total failure of the entire claim in
the suit and the suit should be devoid of any merit, any rhyme or reason without
possessing a modicum of success. He argued that in this case the petitioner-
appellant failed in the suit due to lack to evidence and since the suit is dismissed
for insufficiency of evidence, it cannot be treated as failure as contemplated in
Rule 11 or Order XXXIII of the C.P.C. He further argued that in the judgment
passed by this Court in appeal this Court merely dismissed the appeal and has not
held that the plaintiff has failed in the suit. Therefore, according to him, Rule 11 of
Order XXXIII is not attracted at all in this case.”
 It was further held:—
“23. The question whether the plaintiff suing as a pauper is liable to pay court fee
when he succeeds in respect of part of the claim made by him in the suit was
considered and settled by the Madras High Court way back in the year 1891. In
the decision reported in I.L.R. (1891) 14 Madras 163 (Chandrareka v. Secretary of
State for India) a Division Bench of the Madras High Court held that the plaintiff
in that partition suit who obtained a decree for Rs. 100/- being a moiety of the
property claimed is liable to pay court-fee with regard to the sum of Rs. 100/- and
the 1st defendant who contested the suit is liable to pay court fee for the balance
amount under Section 411 of the C.P.C. of 1882.”
It was opined:—
“31. Hence, the petitioner who is the plaintiff in the suit and appellant in the
appeal cannot escape from his liability to pay the court-fee payable on the plaint
and on the memorandum of appeal in this case as he failed in the suit and appeal
by merely contending that he still continues to be an indigent person and a man of
no means.
32. The questions whether the indigent plaintiff is liable to pay the court-fee on his
failure in the suit and whether the State could recover or realize the court fee
payable by him under due process of law are separate and distinct matters to be
considered independently. We are not called upon to pronounce on the issue as to
whether the State will be able to realize the court-fee payable on the plaint and
memorandum of appeal by the petitioner in this case under due process of law.
33. It is also pertinent to note that the petitioner herein by filing the above petition
purporting to be for correction of the judgment and decree under Sections 151 and
152 of the C.P.C. in fact seeks review of the judgment and decree passed by this
Court in the above appeal which is not permissible under law.”
6. Appellant is, thus, before us.
7. Mr. A. Raghunath, learned counsel appearing on behalf of the appellant in support
of this appeal submitted that Order XXXIII Rule 11 of the Code of Civil Procedure will have
no application unless the conditions precedent laid down therefor are satisfied. It was urged
that a person despite dismissal of a suit and an appeal filed by him in forma pauperis may
continue to be an indigent person and the Scheme of the Act will be defeated if a direction is
issued to recover the amount of court fee from him.
8. Order XXXIII of the Code of Civil Procedure deals with suits by indigent persons
whereas Order XLVI thereof deals with appeals by indigent persons. When an application is
filed by a person said to be indigent, certain factors for considering as to whether he is so
within the meaning of the said provision is required to be taken into consideration therefor.
A person who is permitted to sue as an indigent person is liable to pay the court-fee which
would have been paid by him if he was not permitted to sue in that capacity, if he fails in the
suit of the trial or even without trial. Payment of court fee as the scheme suggests is merely
deferred. It is not altogether wiped off. Order XXXIII, Rule 10 of the Code of Civil
Procedure provides for the consequences in regard to the calculation of the amount of court
fees as a first charge on the subject-matter of the suit.
9. For calculation of court-fee, there does not exist any distinction between a
situation attracting Rule 10 on the one hand and Rule 11 on the other. The court-fee is to be
calculated on the amount claimed and not on the amount decreed. For the said purpose,
what is relevant is the final decision taken by the Court in this behalf. Rule 11 directing the
pauper plaintiff to pay the court-fee can be made in the four different situations.
(i) When the plaintiff failed in the suit.
(ii) Where the plaintiff is dispaupered.
(iii) Where the suit is withdrawn.
(iv) Where the suit is dismissed under the circumstances specified in clause (a) or
clause (b).
10. When, therefor, the plaintiff fails in the suit or plaintiff is dispaupered, the same
has nothing to do with dismissal of the suit under the circumstances specified in clauses (a)
and (b).
11. Submission of Mr. A. Raghunath, learned counsel for the appellant that clauses (a)
and (b) would attract all the four situations contemplated by Order XXXIII, Rule 11 in
our opinion is misconceived. Clauses (a) and (b) would be attracted only when the suit is
inter alia dismissed by reason of the contingencies contained in clauses (a) and (b). Clauses
(a) and (b) will have no bearing and/or relevance, when a suit is dismissed on merit or when
the plaintiff is dispaupered.
12. For the purpose of construction of the aforementioned provisions, it is necessary
to give effect to all the conditions mentioned therein. As in three out of the four
contingencies in the Rule, the order has to be passed when the suit comes to an end, it will be
a fair construction to hold that clauses (a) and (b) refer to the fourth condition. We fail to see
as to how the same can be held to be attracted even in the former case. Each situation as
referred to hereinbefore is distinct and different. The word “or” is disjunctive and thus must
be given effect to independent of the other cases.
13. Reliance placed on a decision of the learned Single Judge of the Patna High Court
in Ram Saran and Others v. State of Bihar and others, AIR 1959 Pat 384, in our opinion does
not advance the case of the appellant inasmuch as therein the Court was concerned with a
situation where a question arose as to what would happen if the suit is decreed in part.
It was held:—
“8. From Rules 10 and 11 of Order XXXIII, it follows, therefore, that if the
plaintiff’s suit is dismissed, the Court has no discretion or option in the matter, but
to order the plaintiff or any added co-plaintiff to pay the court-fee. In such a case,
the court cannot direct the court-fee to be paid by the defendants. It must be paid
only by the plaintiff, or the co-plaintiff as the case may be, and by none else. If,
however, the plaintiff succeeds in the suit, the Court has been given a discretion to
direct from which party the court-fee shall be payable. In such a case, the Court
has been given a wide discretion.
It can direct the entire court-fee to be paid either by the plaintiff, or the defendant,
or both. On the facts and circumstances of each particular case, the court can
exercise its discretion, and direct the court-fee to be payable accordingly. But to a
case like the present, where the suit has been decreed in part, that is, the plaintiff’s
claim has been partly allowed and partly disallowed, there is no provision in the
Code which in terms applies. The Code has not laid down anywhere the procedure
which is to be followed by the Court in such a case. Obviously, therefore, to
such a case neither Rule 10, nor Rule 11, in terms, would apply.”
 14. The decision relied on by the learned counsel therefore is itself an authority for the
proposition that in a case where Rule 11 of Order XXXIII is attracted, the Court cannot direct
the defendant to pay the court fee and it must be paid by the plaintiff or the co- plaintiff.
15. We, therefore, are of the opinion that there is no infirmity in the impugned
judgment. The appeal is dismissed. However, in the facts and circumstances of the case,
there shall be no order as to costs.
Appeal dismissed.

[2007 (2) TNCJ 238 (SC)]

SUPREME COURT
BEFORE:
S.B. SINHA AND MARKANDEY KATJU, JJ.
S. SETHURAMAN ....Appellant
Versus
R. VENKATARAMAN AND OTHERS ...Respondents
[Civil Appeal No. 2533 of 2007, (Arising out of SLP (C) No. 16627 of 2006) decided on 15 th
May, 2007]
Tamil Nadu Private Schools (Regulation) Rules, 1974—Rule 15(4)—Constitution
of India, 1950, Article 226—Appointment/ Promotion of Headmaster—Appeal against
—Comparative assessment of merit of candidate—Question of inter se merit—
Misconduct of appellant—Plea of Managing Committee—Matter remitted to Joint
Director of School Education for consideration afresh strictly in accordance with law.

(Paras 2, 3, 15 and 30)

Important Point
(i) Rule 15 (4) of the Rules provides that promotion shall be made on ground of merit
and ability, seniority being considered only when merit and ability are
approximately equal.
(ii) For the purpose of judging the respective merit and ability of the candidates, their
extra-curricular activities may be taken into consideration.
(iii) The terms and conditions of service of the teachers of an aided school are
governed by the Act and the Rules framed there under. The Managing Committee
of the School in terms of Rule 15 of the Rules are enjoined with a duty to fill up the
post of Headmaster primarily on the basis of ‘merit and ability’.
Case law.—(2006) 4 SCC 713; 2006 (12) Scale 58.
Counsel.—Mr. K. Parasaran, for the appellant; Mr. T.L.V. Iyer, for the respondent
No.4; Mr. L.N. Rao, for the Management of School.
JUDGMENT.
S.B. SINHA, J.—Leave granted.
2. Recruitment/Promotion to the post of Headmaster in an aided or unaided school in
the State of Tamil Nadu is governed by Tamil Nadu Recognised Private Schools (Regulation)
Act, 1973 and Tamil Nadu Private Schools (Regulation) Rules, 1974 (Rules), Rule 15(4)
whereof reads as under:—
“15(4) (i) Promotion shall be made on grounds of merit and ability, seniority being
considered only when merit and ability are approximately equal.(ii)
Appointments to the various categories of teachers shall be made by the
following methods.
(i) Promotion from among the qualified teachers in that school.
(ii) If no qualified and suitable candidate is available by method (i) above,—
(a) Appointment of other persons employed in that school, provided they are fully
qualified to hold the post of teachers.
(b) Appointment of teachers from any other school.
(c) Direct recruitment. In the case of appointment from any other school or by direct
recruitment, the School Committee shall obtain the prior permission of the
District Educational Officer in respect of Pre-primary, Primary and Middle
School and that of the Chief Educational Officer in respect of High Schools and
Higher Secondary Schools, Teachers’ Training Institutions setting out the
reasons for such appointment. In respect of corporate body running more than
one school, the schools under that body shall be treated as one unit for purpose
of the rule.
(d) Appointment to the post of Headmaster of Higher Secondary School shall
be made by the method specified in clause (ii) either from the category of
Headmasters of High Schools or Teachers’ Training Institutes or from the
category of Post-Graduate Assistants in academic subjects or Post-Graduate
Assistants in Languages provided they possess the prescribed qualifications.”
3. Rule 15(4) of the Rules provides that promotion shall be made on ground of merit
and ability, seniority being considered only when merit and ability are approximately equal.
Admittedly, the Managing Committee of the School made comparative evaluation of merit
and ability of the appellant vis-a-vis respondent no. 1 and opined that the merit and ability of
the former is better than the latter. Some other factors including the one that the first
respondent was holding the post of Secretary and correspondent in another school were also
taken into consideration. Appellant was, therefore, appointed to the post of headmaster in the
school.
4. An appeal was preferred there against before the Joint Director of School
Education by the said respondent. The said appeal was, however, dismissed.
5. A writ petition bearing No. 20183 of 1992 was filed by the first respondent which
was allowed by reason of a judgment and order dated 21.12.1998 by a learned Single Judge
of the High Court.
6. In an appeal preferred there against viz., Writ Appeal No. 2058 of 1999, however, a
Division Bench remitted the matter back to the Joint Director of School Education (Higher
Secondary) by an order dated 14.07.2000 stating:—
“The learned counsel appearing on behalf of the fourth respondent had made
such a specific statement in the Court and therefore, by consent of both the
counsel, the matter is being remanded to the Joint Director of School Education
(Higher Secondary), Directorate of School Education, College Road, Chennai.
 He will now go into the question of the inter se merits alone strictly within the
scope of Rule 15 of the Tamil Nadu Recognized Private Schools (Regulation) Act,
1973 (Tamil Nadu Act 29 of 1974). If the parties so feel they shall be entitled to
be heard by the first respondent. The first respondent shall decide the question
with reference to the date of the availability of the post i.e. 23.07.1992 and
shall proceed to decide whether on that date it was the petitioner or the fourth
respondent who could be appointed as a Headmaster on the basis of inter se merits
etc.”
7. By an order dated 2.11.2000, the second respondent opined that the merit and ability
of both the appellant and the first respondent were equal and, therefore, since the first
respondent was senior, he should be selected for the post of Headmaster as per the
provisions of the Act and the Rules.
8. Aggrieved by and dissatisfied with the said order, the appellant filed a writ
petition marked as W.P. No. 19445 of 2000. The learned single Judge allowed the said writ
petition holding that except under extraordinary circumstances the authorities under the Act
should be slow in interfering with the selection made by the school management to the post
of headmaster the same being very vital for the day-to-day management of the school.
9. The learned Judge was of the view that the second respondent had omitted to deal
with the overwhelming materials which were considered by the school committee while
selecting the appellant for the post of headmaster.
10. The Court further held that the opinion of the Managing Committee should not
ordinarily be set aside by the authority stating:—
“10. When the case on hand is considered in the light of the above stated
principles laid down by the Supreme Court, there can be no two opinion that
except under extraordinary circumstances where it is demonstrated to the
satisfaction of the authorities concerned that the selection was made giving a
complete go by to the normal method in the assessment of merit and ability of the
different claimants, the authorities should be very slow in interfering with the
selection so made by the school management to the post of head master as that
would be very vital for the day-to-day management of the school as the role of a
Head Master involves the administration of the school including the supervision
and control of teaching and non teaching staff, students and other aspects
concerning the school.”
It was held:—
“The order of the first respondent in attempting to equate the status of the
petitioner and the 4th respondent by considering certain factors alone being the
relevant factor namely the dual role of the 4th respondent in order to ultimately
hold that since because the 4th respondent is senior, his appointment should be
made cannot be accepted. In fact, in the proceedings of the selection committee
dated 3.8.1992, a detailed consideration has been made as regards the merits of the
petitioner on various aspects. Unfortunately, the first respondent has omitted to
deal with such superfluous and overwhelming materials which were considered
by the third respondent school committee while selecting the petitioner for the post
of head master. When such consideration which weighed with the school
committee had been really considered by the first respondent in their proper
perspective, certainly there would have been no scope for the first respondent to
 equate the 4th respondent with the petitioner. So, in view of the above said
reasons and in the light of the fact that the 4th respondent was holding the
position of Secretary and Correspondent of another middle school during the
relevant point of time, the non-consideration of the impact of such a position held
by the 4th respondent in the event of he being appointed to the post of head master
by the first respondent would be a detrimental factor making the impugned order
invalid in law.”
11.The writ petition of the appellant was, thus, allowed.
12. The Order of the learned Single Judge, however, was set aside by a Division Bench
of the said High Court inter alia opining:—
(i) As the interference with the decision of the selection committee was made at
the instance of the High Court, the appellant could not claim that the statutory
authority is not entitled to interfere with the decision of the committee very lightly.
(ii) Although in the first round of battle, appellate authority did not choose to interfere
with the decision of the school committee, it was constrained to interfere in the
second round of the battle, on account of the order of remand passed by this Court.
(iii) Having invited such an assumption on merits through directions of this Court, it
is not open to the first respondent to question the jurisdiction of the second
respondent to go into the merits of the case.
(iv) Parties hereto having submitted themselves to the jurisdiction of the appellate
authority to assess their relative merits, the appellant is stopped from contending
that the decision of the school committee cannot be lightly interfered with.
(v) After having submitted themselves to an assessment by the second respondent, it is
also not open to the parties to assail the final decision taken by the second
respondent, on merits.
(vi) The learned Judge was also carried away by the fact that the appellant functioned
as the Correspondent of another middle school only at the relevant point of time in
1992. This fact has also been taken into account by the second respondent, in his
order dated 2.11.2000. Therefore, the second respondent has actually taken into
account all relevant factors in coming to the conclusion in his order dated
2.11.2000.
(vii) After finding that both the appellant and the first respondent are equally
well placed in the matter of merit and ability, the second respondent naturally
applied the principle of seniority, since Rule 15(4)(i) enables him to consider
seniority where merit and ability are equal. Therefore, the order of the second
respondent does not suffer from any illegality.
(viii) Respondent No. 1 was aged 50 years at the time of the writ petition was filed in the
year 2000 whereas the appellant was aged 44 years. And in view of the pending
litigation for the past 14 years, no penalty could reach in the matter of promotion,
the post of headmaster in the fourth respondent’s school and the appellant is now
left with two years of service.
13. Mr. K. Parasaran, learned senior counsel appearing on behalf of the appellant in
assailing the said judgment submitted that the Division Bench of the High Court committed a
serious error insofar as it failed to take into consideration that the appellate authority in
arriving at its decision not only failed to take into consideration the relevant facts, but in
fact based its decision on irrelevant factors.
 14. Mr. T.L.V. Iyer, learned senior counsel appearing on behalf of respondent No. 4,
on the other hand, urged that although ex-facie the order of the appellate authority dated
2.11.2000 would show that he had taken into consideration some factors which may not of
much relevance but the real consideration therefor is evident from following findings
arrived at by it.
“Regarding special merit, R. Venkataraman though a Tamil Teacher had
undergone computer training. He obtained a certificate in Health and Hygiene
from Poona. He obtained many certificates in the subject Tamil in which he
teaches. He served as an editor for the monthly magazine “Thondu” by the Gandhi
Peace Foundation, Chidambaram. He participated as a spectator in the fifth
World Tamil Conference held in 1981. He conducted Literary Association
meetings. He won prizes in essay and recitation competitions. He involved himself
in religious service, musical service and sarvodaya service and human relation
service. He served in Home-guards. He acted in dramas.Similarly, the science
teacher Thiru Sethuraman participated in many District level, State level and
Southern India level science and Technology exhibitions and won many prizes. He
participated in many researchers organized by Indian Science Congress
Association and similar organizations. He had undergone Inservice-Training,
Scout Training and Computer Training. He wrote many books. He has also
served as Assistant Commissioner of Bharath Scouts and Guides. After
registration as a Ph.D Scholar he submitted the synopsis. He acted in dramas.
Based on special merit and ability each one excels in his specific field. The Tamil
teacher Thiru R. Venkataraman has a special ability in his field. He has speaking
and writing skills. Similarly Thiru Sethuraman has done researches on science
related projects and excels in that field by obtaining many credits. Both of them
had undergone computer training. As science teacher, Thiru Sethuraman has
developed a Computer Software on “How to teach Chemistry through
Computer”. Thiru Venkataraman, similarly conducted Literary Association
meetings and literary improvement meetings. This literary service and teaching
chemistry through computer are special features in class-rooms. Just like Thiru
Sethuraman possessing many titles and appreciations in the field of science Thiru
Venkataraman possesses titles and appreciations in the field of Tamil literature.
Thiru Sethuraman served as Assistant Commissioner in Scouts, served in
Homeguards for five years. Thiru Sethuraman and Thiru Venkataraman acted in
dramas and won appreciation. Just like Thiru Sethuraman excelled in the field of
science and related researchers Thiru Venkataraman excelled in social service,
literary service, musical service and religious service.
Thiru Sethuraman got Doctorate degree after 1992. Thiru Venkataraman served as
Secretary/Correspondent in some other school obtained concurrence from the
Secretary of National Higher Secondary School (in 1992). This did not divert his
attention as a Postgraduate Teacher which is understood from the results in Tamil
(100%). Passing of Accounts Test is not applicable to aided school teachers.
Considering the pass-percentage in their subjects Thiru Venkataraman had served
better than Thiru Sethuraman.
Thiru S. Sethuraman Thiru R. Venkataraman 1987-88
1987-88
1988-89 Five years 1988-89 Five years
1989-90 98% 1989-90 100%
1990-91 1990-91
1991-92 1991-92"
15. Mr. L.N. Rao, learned senior counsel appearing on behalf of the management of
the School brought to our notice that a charge memo has been issued against the appellant
herein for alleged commission of serious misconduct during the period when he was
occupying the post of Headmaster.
16. The terms and conditions of service of the teachers of an aided school are governed
by the Act and the Rules framed thereunder. The Managing Committee of the School in
terms of Rule 15 of the Rules are enjoined with a duty to fill up the post of Headmaster
primarily on the basis of ‘merit and ability’. Indisputably, the Committee while
appointing a person must take into consideration the merit and ability of the candidate alone
and only when the respective merit and ability of two candidates are equal, seniority will
have some role to play. Respondent No. 1 is senior to the appellant only by 13 days. At
the relevant point of time, the appellant had passed the prescribed Accounts test for
Headmasters conducted by the Tamil Nadu Public Service Commission in the year 1989.
Before us various other factors have been placed for the purpose of showing that apart
from the fact that the appellant was more qualified, the respondent No. 1 having regard to his
past services should not have been considered suitable for appointment to the said post.
17. While exercising the appellate jurisdiction, the appellate authority has indisputably
a plenary power. It may not only consider the respective educational qualifications and
other activities of the respective candidates for the purpose of arriving at a decision as
to which of the two candidates had better merit and ability, but it should exercise its
jurisdiction keeping in view the views of the Managing Committee. If two views are
possible, ordinarily, the view of the Managing Committee should be allowed to prevail.
18. It is unfortunate that the High Court failed to apply the correct principles of law in
this case. Each one of its reasons, in our considered opinion, is wholly untenable. It suffers
from misdirection in law.
19. As noticed hereinbefore, the matter was remitted to the Joint Director of School
Education by the High Court with the consent of the parties but the High Court in its Order
categorically directed the said Authority to consider the matter strictly within the scope of
Rule 15 of Rules. The High Court did not and could not enlarge the scope of the appeal.
20. If the Appellate Authority thought otherwise, its order would not be sustainable. It
was, therefore, obligatory on the part of the High Court to apply its mind on the jurisdictional
question raised by the appellant. It should have been tested the orders of the Appellate
Authority and consequently the learned Single Judge of the High Court on their own merits
and not de’hors the same.
21.When the extant rule operating in the field was referred to by the High Court, it
should have applied the same. What, therefore, could have been done by the appellate
authority was to follow the provisions of the Rules and not to act de’hors the same. He was
exercising a quasi judicial function. As an appellate authority and acting under a statute,
indisputably he could not have failed and/or refused to take into consideration the relevant
factors and base its decision on irrelevant factors or on extraneous consideration.
22. Such a decision keeping in view the scope and ambit of the power of judicial
review vested in the High Court under Article 226 of the Constitution of India could have
been interfered with on the ground that the order impugned before it contained errors
apparent on the face of the records. Whereas the learned Single Judge of the High Court in
passing its Order took the said principle into consideration, the Division Bench in our opinion
failed to do so, Not only despite its attention having been drawn to a number of grounds
leading to passing of the Order impugned before it became vitiated, the High Court applied
the principle of estoppel against the appellant and opined that having submitted himself
to the jurisdiction of the appellate authority, he could not be permitted to question the legality
of the same. The approach of the High Court in our opinion was wholly erroneous. Principle
of estoppel has no application in a case of this nature. Appellant did not and in fact could not
confer upon an authority a jurisdiction which he did not derive under the statute. If
jurisdiction cannot be conferred by consent, it cannot clothe the authority to exercise the
same in an illegal manner. The jurisdiction of the appellate authority pursuant to the order
of the Division Bench, which it will bear repetition to state, was passed on consent of the
parties is not in dispute but only because the appellant consented to re-examination of the
matter by the appellate authority, which it was otherwise entitled to, the same by itself could
not have been found to be a ground for his becoming ineligible to challenge the final order
passed by the appellate authority when a large number of jurisdictional errors were
committed by it and were otherwise apparent on the face of the records. The Division
Bench of the High Court in our opinion, therefore, was not correct in taking the
aforementioned view.
23. We may notice that the appellate authority while judging the merit and ability of
the first respondent, took into consideration the following:—
1. Though a Tamil Teacher, had undergone computer training.
2. Obtained certificate in Health and Hygiene from Poona.
3. Obtained many certificates in the subject of Tamil in which he teaches.
4. Served as Editor for the monthly magazine “Thondu” by the Gandhi Peace
Foundation, Chidambaram.
5. Participated as a spectator in the fifth World Tamil Conference held in
1981.
6. Conducted Literary Association meetings.
7. Won prizes in essay and recitation competitions.
8. Involved himself in religious service, musical service, sarvodaya service
and human relation service.
9. Served in Home-guards.
10. Acted in dramas.
11. Has special ability in his field.
12. Has speaking and writing skills.
13. Undergone computer training.
14. Conducted Literary Association meetings and literary improvement
meetings.
15. Possesses titles and appreciations in the field of Tamil literature.
16. Acted in dramas and won appreciation.
17. Excelled in social service, literary service, musical service and religious
service.
 18. Served as Secretary/Correspondent in some other school after obtaining
concurrence from the Secretary in 1992, which did not divert his
attention as a Postgraduate Teacher, which is understood from the results in
Tamil (100%).
19. Passing of Accounts Test is not applicable to aided school teachers.
20. Passing percentage in his subject of Tamil for 5 years (i.e. 1987-88 and
1991-92 ) is 100%.
24. Most of the considerations which weighed with it were irrelevant.
25. In Narinder Mohan Arya v. United India Insurance Co. Ltd. and others, (2006) 4
SCC 713, this Court held:—
“44. The judgment and order of the learned Single Judge suffers from several
infirmities. He had observed that “the disadvantages of an employer as such acts
are committed in secrecy and in conspiracy with the person affected by the
accident”. No such finding has been arrived at even in the disciplinary proceedings
nor was any charge made out as against the appellant in that behalf. He had no
occasion to have his say thereupon. Indisputably, the writ Court will bear in mind
the distinction between some evidence or no evidence but the question which was
required to be posed and necessary should have been as to whether some
evidence adduced would lead to the conclusion as regards the guilt of the
delinquent officer or not. The evidence adduced on behalf of the management
must have nexus with the charges. The enquiry officer cannot base his findings on
mere hypothesis. Mere ipse dixit on his part cannot be a substitute of evidence.
45. The findings of the learned Single Judge to the effect that “it is established with
the conscience (sic) of the Court reasonably formulated by an enquiry officer then
in the eventuality” may not be fully correct inasmuch as the Court while
exercising its power of judicial review should also apply its mind as to whether
sufficient material had been brought on record to sustain the findings. The
conscience of the Court may not have much role to play. It is unfortunate that the
learned Single Judge did not at all deliberate on the contentions raised by the
appellant. Discussion on the materials available on record for the purpose of
applying the legal principles was imperative. The Division Bench of the High
Court also committed the same error.”
26. In Indian Airlines Ltd. v. Prabha D. Kanan, 2006 (12) Scale 58, this Court held:—
“46. A judicial review of such an order would be maintainable. In a case of judicial
review, where no appeal is provided for, the High Court in exercise of its
jurisdiction under Article 226 of the Constitution of India would not confine its
jurisdiction only to the known tests laid down therefor, viz., illegality, irrationality,
procedural impropriety. It has to delve deeper into the matter. It would require a
deeper scrutiny.
47. We may notice that keeping in view the situational changes and, particularly,
outsourcing of the sovereign activities by the State, this Court has been
expanding the scope of judicial review. It includes the misdirection in law, posing
a wrong question or irrelevant question and failure to consider relevant question.
On certain grounds judicial review on facts is also maintainable. Doctrine of
unreasonableness has now given a way to doctrine of proportionality.
48. In S.N. Chandrashekar v. State of Karnataka, (2006) 3 SCC 208, this Court
observed:
“33. It is now well known that the concept of error of law includes the giving of
reasons that are bad in law or (where there is a duty to give reason) inconsistent,
unintelligible or substantially inadequate. ( See de Smith’s Judicial Review of
Administrative Action, 5th Edn., p. 286.)
34. The Authority, therefore, posed unto itself a wrong question. What,
therefore, was necessary to be considered by BDA was whether the ingredients
contained in Section 14-A of the Act were fulfilled and whether the requirements
of the proviso appended thereto are satisfied. If the same had not been satisfied,
the requirements of the law must be held to have not been satisfied. If there had
been no proper application of mind as regards the requirements of law, the State
and the Planning Authority must be held to have misdirected themselves in law
which would vitiate the impugned judgment.
35. In Hindustan Petroleum Corpn. Ltd. v Darius Shapur Chenai this Court
referring to Cholan Roadways Ltd. v. G. Thirugnanasambandam, held : (SCC
p.637, para 14)
“14. Even a judicial review on facts in certain situations may be available. In
Cholan Roadways Ltd. v. G. Thirugnanas-ambandam this Court observed: (SCC p.
253, paras 34-35)
’34. It is now well settled that a quasi judicial authority must pose unto itself a
correct question so as to arrive at a correct finding of fact. A wrong question posed
leads to a wrong answer. In this case, furthermore, the misdirection in law
committed by the Industrial Tribunal was apparent insofar as it did not apply the
principle of res ipsa loquitur which was relevant for the purpose of this case and
thus, failed to take into consideration a relevant factor and furthermore took into
consideration an irrelevant fact not germane for determining the issue, namely, that
the passengers of the bus were mandatorily required to be examined. The
Industrial Tribunal further failed to apply the correct standard of proof in
relation to a domestic enquiry which is “preponderance of probability” and applied
the standard of proof required for a criminal trial. A case for judicial review was,
thus, clearly made out.
35. Errors of fact can also be a subject matter of judicial review. (See E. v. Secy. of
State for the Home Deptt.) Reference in this connection may also be made to an
interesting article by Paul P. Craig, Q.C. titled “Judicial Review, Appeal and
Factor Error” published in 2004 Public Law, p. 788.”]
49. Yet again in State of U.P. v. Sheo Shanker Lal Srivastava, (2006) 3 SCC 276,
this Court observed:
“24. While saying so, we are no oblivious of the fact that the doctrine of
unreasonableness is giving way to the doctrine of proportionality.
25. It is interesting to note that the Wednesbury principles may not now be held to
be applicable in view of the development in constitutional law in this behalf. See,
for example, Huang v Secy. of State for the Home Deptt. wherein referring to
R. v Secy. of State of the Home Deptt., ex p. Daly it was held that in certain cases,
the adjudicator may require to conduct a judicial exercise which is not merely more
 intrusive than Wednesbury, but involves a full-blown merit judgment, which is yet
more than ex p. Daly requires on a judicial review where the court has to decide a
proportionality issue.”
27. For the purpose of judging the respective merit and ability of the candidates, their
extra-curricular activities may be taken into consideration, but evidently the appellate
authority took into consideration a large number of irrelevant factors, we may notice
some of them, which are only illustrative in nature.
(i) Participated as a spectator in the fifth World Tamil Conference held in 1981.
(ii) Conducted Literary Association Meetings.
(iii) Involved himself in religious, musical service and human relation service.
(iv) Served in Home-guards.
(v) Acted in dramas
(vi) Undergone computer training.
28. It also failed to take into consideration the relevant fact which inter alia weighed
with the Managing Committee of the School as also the Order of the appellate authority that
as he had served as a Secretary and Correspondent in some other schools and, thus, he had
not been giving all the attention to his teaching works.
29. The Appellate Authority failed to take into consideration the fact that the appellant
had passed the Accounts test. Even if the same was not relevant, although there existed a
Government Order in this behalf, if other activities can be treated to be acts of merit, we fail
to understand as to why acquisition of a higher qualification for the purpose of holding the
post of Headmaster which would be helpful to him in his functioning as a head of an
educational institute would not be relevant. Similarly, the question as to whether the ‘passing
percentage’ of the students in the subjects taught by the appellant or the respondent No. 1 for
five years was 98% or 100% may not be of much significance.
30. For the reasons aforementioned, the impugned judgment cannot be sustained which
is set aside accordingly. The matter is remitted to the Joint Director of School Education for
consideration of the matter afresh strictly in accordance with law.
31. Although in terms of the High Court’s Order, the appellate authority was required
to consider the respective merit and ability of the appellant/first respondent at the relevant
point of time namely when the post fell vacant, we are of the opinion that the same would not
debar it from taking into consideration the question as to whether he has disqualified himself
by any misconduct committed by him during his tenure as Headmaster of the School. The
judgment of the High Court is set aside.
32. This appeal is allowed. In the facts and circumstances of the case, however, there
shall be no order as to costs.
Appeal allowed.

[2007 (2) TNCJ 253 (SC)]

SUPREME COURT
BEFORE:
S.B. SINHA AND MARKANDEY KATJU, JJ.
BENGA BEHERA AND ANOTHER ....Petitioners
Versus
 BRAJA KISHORE NANDA AND OTHERS ...Respondents
[Writ Petition (Civil) No. 3647 of 2003, decided on, 15 May, 2007]
th

Indian Evidence Act, 1872, Section 63—Registration Act, 1908—Section 52—Will

—Genuineness of—Beneficiary of Will total stranger to family—Xerox copy of Will on
ground that original lost—Examination of witnesses—Witness claiming to be attesting
witness—Not knows testatrix personally—Attestation of Will not proved.
(Paras 2, 5, and 39 )
Important Point
Non-production of the original Will stating that the will got lost, gives rise to an
inference that it might have been that the Will did not contain the thumb impression of the
testatrix.
Case law.—AIR 1975 Ker 141; (2003) 2 SCC 91; 1990 (Supp) SCC 684; (2002) 2
SCC 85; (2003) 12 SCC 35; (1995)4 SCC 459; 2006 (11) Scale 148; 2006 (14) Scale 186;
(2006) 9 SCC 515.
JUDGMENT
S.B. SINHA, J.—Interpretation and application of Section 63 of the Indian Succession
Act, 1925 as well as Section 68 of the Indian Evidence Act, 1872 vis-a-vis the requirements
of proof of execution of a document falls for consideration in this appeal which arises out of
the judgment dated 21.11.2002 in First Appeal.No.397/1990 of the High Court of Orissa at
Cuttack. However, before we embark upon the said question, we may notice the facts of the
matter in brief.
2. Admittedly, one Sarajumani Dasi was the owner of the property in question. She
was aged about 70 years when a Will was allegedly executed by her on or about 15.1.1982.
She expired on 5.6.1983. The beneficiary of the Will was the first respondent herein. The
testatrix was living in a math known as Bharati Math at Puri. In the Will, she disclosed her
profession to be “Singer of Bhajans and Kirtans”. It is not in dispute that the first respondent
was a complete stranger to the family. He is a businessman. His father was one of the
disciples of late Taponidhi Ramakrushna Bharati Goswamy, who had founded the Math
wherein the testatrix was living.
3. A deed of sale was also executed by the said Sarajumani Dasi in favour of advocate
Surendra Panda of Puri on the same day. The Will is said to have been scribed by one
Banabehari Upadhyaya (PW-9), an Advocate’s clerk. He as well as one Chandramani Das
Mohapatra who are said to be the attesting witnesses thereto also identified the testatrix
before the Registering Officer. Respondent No.1 obtained the original Will from the Office
of the Registering Authority on 30.1.1982.
4. As noticed hereinbefore, Sarajumani Dasi expired on 5.6.1983. In 1986, an
application was filed by the first respondent in the court of the learned District Judge, Puri for
grant of Letters of Administration in respect of the alleged Will with a copy of the Will
annexed, in terms of Section 278 of the Indian Succession Act. Respondent No.1 claimed that
he had also been residing in the said Math. She was assured of proper care by him and in
consideration of the help and assistance rendered to her by respondent No.1, the said Will
was executed in his favour.
5. Appellants herein are the heirs and legal representatives of the testatrix. They
contested the said application, inter alia, questioning execution of the Will alleging the
same to be a forged and a sham document.
 6. We may notice that the original Will was never produced by the appellant.
7. Execution of the Will was sought to be proved by producing a certified copy
thereof. A purported xeroxed copy of the said will was also filed. The registration of the
said Will was sought to be proved by calling the document in question wherein the contents
of the document registered were noted.
8. To prove execution and attestation of the Will, the respondent No.1, inter alia,
examined Banabehari Upadhyaya (P.W.9), Purnchandra Rath (P.W.4) and Surendra Panda
(P.W.7).
9. We will notice their statements before the learned District Judge for determining the
question as to whether requirements of law had been complied with.
10. P.W.9- Banabehari Upadhyaya who, as noticed hereinbefore, not only scribed the
Will but also stated himself to be an attesting witness and identifier of the testatrix, in his
deposition stated as under:
“ On 15.1.82, Sarajumani Dasi executed a Will in favour of one Brajakishore
Nanda and the same was scribed by me….
I do not remember anything that happened on 15.1.82 except what I have
deposed with reference to the document.
I first saw Sarajumani Dasi when she executed the sale deed. I did not know her
before that. Surendranath Panda brought Sarajumani Dasi to me with him.
Sarajumani Dasi was with Surendranath Panda and I was called to scribe the Will
to become an identifying witness and also an attesting witness. Surendra
Panda identified Sarajumani Dasi to me and that is how I know her. I did not make
a draft of the Will but scribed it as per dictation of Surendranath Panda.
Sarajumani Dasi did not put her L.T.I. in my presence on the Will at the time of
execution of it. I attested her L.T.I. before she put her L.T.I. on the sale deed and
the Will. Sarajumani Dasi was not present when I scribed the sale deed and will
and made the endorsements attesting her L.T.I. I do not know if any other person
attested the Will and the sale-deed.
I scribed whatever was dictated by Sri Panda without understanding the meaning
or purport. I did not disclose before the Sub-Registrar or before any body that I
identified Sarjumani Dasi without knowing her or attested her L.T.I. even though
her L.T.I. were not affixed in my presence.”
11. In his deposition, P.W.4-Purnachandra Rath (An Advocate) stated:
“Thereafter on 15.1.82, Sarajumani again came to the Bar Association and met me
there. Brajakishore Nanda (P.W.1 - Plaintiff) and his father Sanmajaya Nanda (not
examined) accompanied the Mata. She expressed before me that she would execute
the Will and also the sale deed. On her instruction, I made a gist of the Will and
asked Banabehari Upadhyaya to scribe the same. The scribe read over and
explained the contents of the Will to Sarajumani and she acknowledged the same
to be true and correct. When Sarajumani affixed her L.T.I. on the Will, myself,
Banabehari Upadhyaya, (P.W.9) advocate Sri Surendra Panda and Chandramani
Das Mohapatra and Sanmajaya Nanda were present..
I am attesting witness to the will. I endorsed a certificate in the Will to the effect
that the executant was my client and the Will was written by my clerk in my office
on my direction”
12. In his deposition, P.W.7-Surendra Panda (An Advocate) stated thus:
 “On 15.1.82, Sarajumani Dashi came to the Bar Association, Bhubaneswar. She
was accompanied by Brajakishore Nanda and Jammajjaya Nanda at that time.
That day i.e. 15.1.82 Sarajumani Dashi expressed her desire before her lawyer
Purnchandra Rath (P.W.4) to execute the Will in favour of Brajakishore Nanda.
Then the lawyer made a rough draft of the Will. Mr. Rath called Benabehari
Upadhyaya to scribe the Will. The contents of the document were read and
explained to Sarajumani Dashi. Sarajumani Dashi acknowledged the contents of
the document to be true and correct and gave her L.T.I.. thereon. Attesting
witness P.C. Rath, Chandramani and Banabehari Upadhaya were present when
Sarajumani Dashi affixed her L.T.I. on the Will”
13. P.W.9- Banabehari Upadhyaya did not, thus, admittedly know the testatrix from
before. He had seen her for the first time on the day when the Will was executed and because
Surendra Panda had asked him to identify her, he did so. It was stated that the same was
scribed by him as per dictation of Surendra Panda, but in the Will, it was stated that he
himself did it.
14. If he had put his signature before the testatrix had put her thumb impression on the
sale deed and the Will, he does not answer the requirement of attesting witness. He was not
aware of any other person attesting the Will and the sale deed. P.W.9, therefore, failed to
prove execution or attestation of the Will. Not only he did not take any instruction from the
testatrix before the Will was scribed, but the same was done on the dictation of P.W.7. There
is nothing on record to show that the testatrix understood the meaning, purport and contents
of the Will. She had put her thumb impression in his presence. There is nothing on record to
show that the Will was read over and explained to the testatrix and she had put her thumb-
impression upon understanding the contents and purport of the Will and put her thumb-
impression as admission thereof. A certificate to that effect was in ordinary course required
to be given by the scribe of the Will, particularly when the same had been found to be given
by him in the sale deed executed by her on the same day which was marked as Ext.16.
15. P.W.4-Purnachandra Rath, as noticed hereinbefore, gave a completely different
picture of the stay. According to him on 15.1.1982 the testatrix expressed her desire to
execute a Will as also a sale deed, whereupon he made a gist of the contents of the Will and
then asked P.W.9 to scribe it. No draft of the Will was prepared although drafts of the sale
deeds were prepared. Although in his deposition P.W.-4 contended that he had endorsed a
certificate in the Will to the effect that the Will was written by his clerk in his office on his
direction, the certified copy of the Will did not show the same. A certificate to that effect
appeared in the Xeroxed copy of the Will which was brought on record and marked at Ext.-
13/a, but such a certificate did not find place in the certified copy of the Will, and thus, no
reliance can be placed thereupon.
16. The High Court in its judgment proceeded on the basis that P.W.-4 was also a
witness to the execution of the Will by the testatrix and thus would come within purview of
the definition of the term ‘attesting witness’.
17. So far as the deposition of P.W.7-Surendra Panda is concerned, he contradicts
P.W.-9 as according to him he was not present when the testatrix had put her thumb
impression and he had attested her thumb impression before she gave her thumb
impression. His evidence to the effect that the Will was read over and explained to the
testatrix does not find mention in the Will and even a statement that three attesting witnesses
signed the Will does not appear to be correct as only the name of P.W.-7 and P.W.-9
appeared as attesting witnesses in the Will.
 18. Learned counsel appearing on behalf of the respondents, however, would submit
that as the attesting witnesses were not willing to depose, it was not necessary to prove
attestation in terms of Section 71 of the Indian Evidence Act. Summons were issued to the
attesting witnesses by the Court. One of the attesting witnesses did not appear, P.W.9
appeared but he was declared hostile. Our attention in this connection has also been drawn
to a part of his statement in the cross-examination where he has deposed as under:
“My Moharir licence might have been cancelled due to my misconduct and illegal
activities.”
19. It is not for this Court, as submitted by the learned counsel, to consider the
integrity and honesty of the said witness. According to the learned counsel, not only P.W.4
should be treated to be an attesting witness, but must also be heldto have proved due
execution of the Will.
20. We may deal with the contention of the learned counsel in respect of application of
Section 71 of the Indian Evidence Act a little later. But, in our opinion, P.W.-4 cannot be
considered to be a witness to execution of the will as he had nothing to do therewith. He
comes into the picture only because an endorsement was found on the Xerox copy of the Will
which, in our opinion, is of doubtful origin, keeping in view the fact that the same did not
find a mention in the certified copy thereof. His evidence, in our opinion, would, thus, not be
of much significance. This aspect of the matter was not considered by the High Court at all.
We are, therefore, unable to agree with the following finding of the High Court: “The
attesting witnesses Purna Chandra Rath (P.W.4) Chandramani Das Mohapatra and
Banahihari Upadhay (P.W.9) were present when she affixed her LTI on the Will. All the
three attesting witnesses signed the Will in presence of Sarajumani inasmuch as no reliance,
whatsoever, can be placed on the testimony of P.W.-4, PW-4 is an advocate. He is supposed
to know the importance of attestation. If he intended to be an attesting witness, he could
have done so.
21. It was also not necessary for the appellants to confront him with his signature in
the Xeroxed copy of the Will, inasmuch as the same had not appeared in the certified copy.
Execution of a Will is required to be proved in terms of Section 63 of the Succession Act, in
terms whereof a Will must be attested by two or more witnesses. Execution of a Will,
therefore, can only be proved in terms of clause (c) of Section 63 when at least one of the two
witnesses proves the attestation. A Will is required to be attested by two or more
witnesses, each of whom has seen the testator sign or affix his mark to the Will. Section 68 of
the Evidence Act provides for the requirements for proof of execution of the Will. In terms of
said provision, at least one attesting witness has to be examined to prove execution of a Will.
22. P.W.-9, as noticed hereinbefore in his deposition, stated that Sarajumani Dasi did
not put her thumb impression in his presence on the Will at the time of its execution.
Whether the same would amount to denial of the execution of a Will even within the meaning
of Section 71 of the Indian Evidence Act is the question.
23. Section 71 of the Evidence Act reads as under:
“71. Proof when attesting witness denies the execution.—If the attesting witness
denies or does not recollect the execution of the document, its execution may
be proved by other evidence.”
24. He neither denies the execution nor has failed to recollect the execution of the
Will. According to him, the testatrix had put her LTI only after he had put his signature.
 25. Section 71 of the Act provides for one of the exceptions where it is not possible to
strictly comply with the requirements of Section 68. Sections 69, 70 and Section 71 are
exceptions to Section 68. Section 69 provides for proof of a document where no attesting
witness is found. Section 70 provides for admission of execution by party to attested
document. Section 71 deals with a situation where the attesting witness denies or does not
recollect the execution of the document and only in that eventuality, the document’s
execution may be proved by other evidence.
26. As indicated hereinbefore, P.W.-9 does not deny the execution. His statement,
thus, does not satisfy the requirements of Section 63(c) of the Succession Act. While
appreciating evidence of a witness, we cannot go beyond the same and while doing so, we
cannot raise a legal fiction that he must have done so only because the first respondent had
cross-examined him on certain issues. By cross-examining one’s own witness, the effect of
his statement in examination-in-chief in a case of this nature cannot be ignored. Whether
Section 71 of the Evidence Act was applicable in the facts of the present case must be found
out upon reading his evidence in its entirety.
27. Strong reliance has been placed by learned counsel on Ittoop Varghese v. Poulose
and Others, AIR 1975 Ker 141. The High Court in that case proceeded on the basis that
Section 71 of the Act would be attracted when a witness deliberately and falsely denies that
he had attested the Will and in a situation of that nature, the Court would be entitled to look
into the totality of the circumstances so as to enable it to arrive at a conclusion on the
question of attestation. In Ittoop Varghese case (supra), the witnesses categorically stated
that they had not seen the testator signing and did not gather any personal acknowledgement
from the testator on his signature in the Will and further that they did not sign in the presence
of the testator. It was a case where the statement of the witnesses was found to be wholly
false. It was found having regard to the fact situation obtaining therein and in particular
having been found that the testator knew about the formalities for the due execution of a valid
Will which was also corroborated by the endorsement made therein. The Kerala High Court,
furthermore, reassured itself from the other evidence that the testator had expressed his desire
to execute the Will and in fact wanted to assure himself that no quarrel should arise between
his sons after his death regarding the Will or his signature and only for that purpose he got it
registered. It was furthermore noticed that the Sub-Registrar who had registered the
document, on his examination, affirmed that the document was read over to the
testator and the testator acknowledged his signature in the Will and also signed in token of
presenting the Will before the Sub-Registrar. The Sub-Registrar had also signed it as one of
the witnesses. When a Sub-Registrar had signed the document as a witness and after that
D.W. -5 had signed as an attesting witness upon execution of the document by the testator,
according to the High Court the circumstances of the case were sufficient to come to the
conclusion that there was proof of the due compliance of the formalities required by Section
63 of the Succession Act in that case .
28. We may notice that this Court in Janki Narayan Bhoir v. Narayan Namdeo
Kadam, (2003) 2 SCC 91, laid down the law on interpretation and application of Section 71
of the Act in the following terms:
“11. Section 71 of the Evidence Act is in the nature of a safeguard to the
mandatory provisions of Section 68 of the Evidence Act, to meet a situation where
it is not possible to prove the execution of the will by calling the attesting
witnesses, though alive. This section provides that if an attesting witness denies or
does not recollect the execution of the will, its execution may be proved by other
evidence. Aid of Section 71 can be taken only when the attesting witnesses, who
 have been called, deny or fail to recollect the execution of the document to prove it
by other evidence. Section 71 has no application to a case where one attesting
witness, who alone had been summoned, has failed to prove the execution of the
will and other attesting witnesses though are available to prove the execution of the
same, for reasons best known, have not been summoned before the court. It is clear
from the language of Section 71 that if an attesting witness denies or does not
recollect execution of the document, its execution may be proved by other
evidence. However, in a case where an attesting witness examined fails to prove
the due execution of will as required under clause ( c ) of Section 63 of the
Succession Act, it cannot be said that the will is proved as per Section 68 of the
Evidence Act. It cannot be said that if one attesting witness denies or does not
recollect the execution of the document, the execution of will can be proved by
other evidence dispensing with the evidence of other attesting witnesses though
available to be examined to prove the execution of the will”
(Emphasis supplied)
29. Another vital aspect of the matter cannot also be ignored. Respondent No.1 in his
evidence accepted that he had obtained the registered Will from the office of the Sub-
Registrar upon presenting ‘the ticket’ on 30.1.1982. After receipt of the Will, he had shown
it to Sarajumani Dasi. He did not say how the Will was lost, particularly when he had not
only shown the original Will to the testatrix but also had consulted a lawyer in relation
thereto. No information was lodged about the missing of the document before any authority.
Even approximate point of time the Will was lost, was not stated. In his cross-examination,
he stated: “I cannot say where and how the original will was lost.”
30. Loss of the original Will was, thus, not satisfactorily proved.
31. A document upon which a title is based is required to be proved by primary
evidence, and secondary evidence may be given under Section 65(c) of the Evidence Act.
The said clause of Section 65 provides as under:
“When the original has been destroyed or lost, or when the party offering evidence
of its contents cannot, for any other reason not arising from his own default or
neglect, produce it in reasonable time.”
Loss of the original, therefore, was required to be proved.
32. In a case of this nature, it was obligatory on the part of the first respondent to
establish the loss of the original Will, beyond all reasonable doubt. His testimony in that
behalf remained uncorroborated.
33. Furthermore, secondary evidence, inter alia, could be led by production of a
certified copy given in terms of the provisions of the Indian Registration Act. In support of
the proof of the Will, purported Xerox copy and a certified copy thereof have been
produced. In the Xerox copy, an endorsement has been made by an advocate that the
executant was his client and it was written by his clerk in his office on his dictation, whereas
in the certified copy there is no such endorsement of the advocate.
34. A question has also been raised as to whether a certificate by Sub-Registrar at the
time of registration proves attestation. A Sub-Registrar in the matter of registration of a
document acts under the provisions of the Registration Act, 1908 (1908 Act). Section 52 of
the 1908 Act prescribes the duty of Registering Officer when document is presented in
terms thereof. The signature of every person presenting a document for registration is
required to be endorsed on every such document at the time of presentation. Section 58
prescribes the particulars to be endorsed on documents admitted to registration, such as :
“(a) Signature of the person admitting the execution of the document;
(b) Any money or delivery of goods made in presence of Registering Officer in
reference to the execution of the document shall be endorsed by the Registering
Officer in the document presented for registration.
Therefore, this is the only duty cast on the registering authority to endorse on the
will, i.e. to endorse only the admission or execution by the person who presented
the document for registration. The compliance of this provision leads to the legal
presumption that the document was registered and nothing else..”
35. If an authority in performance of a statutory duty signs a document, he does not
become an attesting witness within the meaning of Section 3 of the Transfer of Property
Act and Section 63 of the Succession Act. The term ‘attestation’ means:
“to `attest’ is to bear witness to a fact. The essential conditions of valid
attestation are (i) two or more witnesses have seen the executant sign the
instrument (ii) each of them has signed the instrument in presence of the
executant.”
36. “Animus attestandi” is a necessary ingredient for proving the attestation. If a
person puts his signature in a document only in discharge of his statutory duty, he may not be
treated to be an attesting witness.
37. The Registering Officer Rabindranath Mohanty was examined as P.W.8. He, in
his deposition, stated:
“ I asked the executant her name, the name of the person in whose favour the Will
was executed and the nature of the document. She admitted before me that she has
executed the Will after understanding the full import of the admission of
execution of the Will.
“While registering the Will, the Registering Officer has endorsed: “Execution is
admitted by the above Sarajumani Dasi who is identified by Sri Banabihari
Upadhyay S/o Harihar Upadhyaya, Advocate’s clerk of Bhubaneswar”.
38. In Dharam Singh v. Aso and another, 1990 (Supp) SCC 684, this Court held:
“2. The two attesting witnesses did not support the execution of the will. The
trial Court relied upon the statement of the registering authority and on the
basis of decisions of the Lahore and Punjab and Haryana High Courts found that
the will had been proved. The lower appellate Court reversed the decision by
relying upon two decisions of this Court in M.L. Abdul Jabhar Sahib v. H.V.
Venkata Sastri & Sons and Seth Beni Chand v. Kamla Kunwar.
3. We have examined the record and are satisfied that the appellate Court and the
High Court were right in their conclusion that the Registrar could not be a
statutory attesting witness. Therefore, the conclusion that the will had not been
duly proved cannot be disturbed.”
39. The said witness did not know the testatrix personally. Even her parentage was not
asked for and inquired into. He was examined eight years after the registration. It is
difficult for any ordinary person after a period of eight years, inter alia, on the basis of a
certified copy to depose in regard to evidence of such nature, particularly, in a case where a
Will has been executed on the day on which she had executed a deed of sale in favour of a
complete stranger. His evidence, therefore, does not inspire confidence. In any event he
cannot be said to have proved due execution or attestation of the Will.
40. It is now well-settled that requirement of the proof of execution of a Will is the
same as in case of certain other documents, for example Gift or Mortgage. The law requires
that the proof of execution of a Will has to be attested at least by two witnesses. At least one
attesting witness has to be examined to prove execution and attestation of the Will. Further, it
is to be proved that the executant had signed and/or given his thumb impression in presence
of at least two attesting witnesses and the attesting witnesses had put their signatures in
presence of the executant. (See Madhukar D. Shende v. Tarabai Aba Shedage, (2002) 2 SCC
85; Janki Narayan Bhoir v. Narayan Namdeo Kadam, (2003) 2 SCC 91 and Bhagatram v.
Suresh and Others, (2003) 12 SCC 35).
41. The Court granting Letters of Administration with a copy of the Will annexed, or
probate must satisfy itself not only about the genuineness of the Will but also satisfy itself
that it is not fraught with any suspicious circumstances.
42. No independent witness has been examined to show how the testatrix came close
to the respondent No.1. Why valuable agricultural land measuring Ac 4.187 and
homestead land along with a house standing thereon had been gifted in favour of the first
respondent, has not been explained. The original Will has not been produced. Why both the
Will and the sale deed should have been executed on the same day, has not been explained.
43. The burden on the first respondent was heavy, he being a stranger to the family. He
failed to discharge the said burden. Variance, inconsistencies and contradictions have
been brought on record, particularly in the statements of P.W.-4 and P.W.-9 and other
witnesses vis-a-vis the contents of the document, which we have noticed hereinbefore.
44. Learned trial Judge as also the High Court did not take into consideration the effect
of such contradictions and inconsistencies, particularly the interpolation/variance in the
Xerox copy of the Will vis-a-vis certified copy thereof. Serious consideration was
required to be bestowed on the contention of the appellants that thumb-impressions of the
testatrix on different pages of the Xerox copy did not tally. No effort was made to compare
the thumb impression appearing on the Xerox Copy with the thumb-impression appearing
on other admitted documents. Non-production of the original Will stating that the Will got
lost, gives rise to an inference that it might have been that the Will did not contain the thumb
impression of the testatrix. The testatrix was an old and ill lady. She had no independent
adviser in the matter of the execution of the Will. On the other hand, the plaintiff/respondent
No.1 and his father being disciple of her Guru were in a position to dominate her mental
process.
45. Respondent No.1 was a student at the relevant time. His father had taken an active
part in the entire process in registering and culmination of the Will in favour of his son. There
are materials on record to show that although sufficient time had been granted for
examination of the other attesting witnesses, Chandramani Das Mohapatra was not
summoned. No summon could be issued only because his correct address had not been
furnished.
46. Existence of suspicious circumstances itself may be held to be sufficient to arrive
at a conclusion that execution of the Will has not duly been proved.
47. In Rabindra Nath Mukherjee and Another v. Panchanan Banerjee (Dead) By LRs.
And others, (1995) 4 SCC 459, this Court opined:
 “8. If a total view is taken of the aforesaid circumstances, which has to be the
approach, we are of the opinion that the Courts below overplayed some
circumstances which they regarded as suspicious and somehow missed some
circumstances which bolstered the case of the propounders.”
48. We may, however, notice that in B. Venkatamuni v. C.J. Ayodhya Ram Singh &
Ors., 2006 (11) Scale 148, this Court upon considering a large number of decisions opined
that proof of execution of Will must strictly satisfy the terms of Section 63 of the Indian
Succession Act. It was furthermore held:
“It is, however, well settled that compliance of statutory requirements itself is not
sufficient as would appear from the discussions hereinafter made.”
It was observed:
“Yet again Section 68 of the Indian Evidence Act postulates the mode and manner
in which proof of execution of document required by law to be attested stating
that the execution must be proved by at least one attesting witness, if an attesting
witness is alive and subject to the process of the Court and capable of giving
evidence.”
It was emphasised that where there are suspicious circumstances, the onus would be on
the propounder to remove the suspicion by leading appropriate evidence stating:
“However, having regard to the fact that the Will was registered one and the
propounder had discharged the onus, it was held that in such circumstances, the
onus shifts to the contestant opposing the Will to bring material on record meeting
such prima facie case in which event the onus shifts back on the propounder to
satisfy the court affirmatively that the testator did not know well the contents of the
Will and in sound disposing capacity executed the same.
Each case, however, must be determined in the fact situation obtaining
therein.
The Division Bench of the High Court was, with respect, thus, entirely wrong in
proceeding on the premise that compliance of legal formalities as regards proof
of the Will would sub serve the purpose and the suspicious circumstances
surrounding the execution thereof is not of much significance.
The suspicious circumstances pointed out by the learned District Judge and the
learned Single Judge of the High Court, were glaring on the face of the records.
They could not have been ignored by the Division Bench and in any event, the
Division Bench should have been slow in interfering with the findings of fact
arrived at by the said Court. It applied a wrong legal test and thus, came to an
erroneous decision.”
49.Yet again in Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao & others., 2006
(14) Scale 186, this Court held:
“Section 63 of the Indian Evidence Act lays down the mode and manner in which
the execution of an unprivileged Will is to be proved. Section 68 postulates the
mode and manner in which proof of execution of document is required by law to
be attested. It in unequivocal terms states that execution of Will must be
proved at least by one attesting witness, if an attesting witness is alive subject to
the process of the Court and capable of giving evidence. A Will is to prove
what is loosely called as primary evidence, except where proof is permitted by
 leading secondary evidence. Unlike other documents, proof of execution of any
other document under the Act would not be sufficient as in terms of Section 68 of
the Indian Evidence Act, execution must be proved at least by one of the attesting
witnesses. While making attestation, there must be an animus attestandi, on the
part of the attesting witness, meaning thereby, he must intend to attest and extrinsic
evidence on this point is receivable. The burden of proof that the Will has been
validly executed and is a genuine document is on the propounder. The propounder
is also required to prove that the testator has signed the Will and that he had put his
signature out of his own free will having a sound disposition of mind and
understood the nature and effect thereof. If sufficient evidence in this behalf is
brought on record, the onus of the propounder may be held to have been
discharged. But, the onus would be on the applicant to remove the suspicion by
leading sufficient and cogent evidence if there exists any. In the case of proof of
Will, a signature of a testator alone would not prove the execution thereof, if his
mind may appear to be very feeble and debilitated. However, if a defence of
fraud, coercion or undue influence is raised, the burden would be on the caveator.
[See Madhukar D. Shende v. Tarabai Shedage, (2002) 2 SCC 85 and Sridevi &
Ors. v. Jayaraja Shetty & Ors., (2005) 8 SCC 784. Subject to above, proof of a
Will does not ordinarily differ from that of proving any other document.”
Noticing B. Venkatamuni (supra), it was observed:
“The proof a Will is required not as a ground of reading the document but to afford
the judge reasonable assurance of it as being what it purports to be.
We may, however, hasten to add that there exists a distinction where suspicions are
well founded and the cases where there are only suspicions alone. Existence of
suspicious circumstances alone may not be sufficient. The Court may not start
with a suspicion and it should not close its mind to find the truth. A resolute and
impenetrable incredulity is demanded from the Judge even there exist
circumstances of grave suspicion. [See Venkatachala Iyengar (supra)]”
[See also Joseph Antony Lazarus (Dead) By LRs. v. A.J. Francis, (2006) 9 SCC 515]
50. For the reasons aforementioned, the impugned judgment cannot be sustained which
is set aside. Accordingly, the appeal is allowed with costs. Counsel’s fee assessed at
Rs.5,000/
Appeal allowed.

[2007 (2) TNCJ 268 (SC)]

SUPREME COURT
BEFORE:
S.B. SINHA AND MARKANDEY KATJU, JJ.
SRI GEDELA SATCHIDANANDA
MURTHY (D) BY LRS ...Appellant
Versus
DY. COMMISSIONER, ENDOWMENT
DEPTT, A.P. AND OTHERS ....Respondents
[Civil Appeal No. 7210 of 2000, decided on 15 May, 2007]
th
 (A) A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1966,
Sections 38, 39 and 78—Private property—Samadhi, temple and residence in—Notice
for registration of temple—Application for deletion from list of Charitable and Hindu
Religious Institutions and Endowments—Since temple established with help of disciples
and public—Held: Merely appellant has residential home in portion of property—
Same not outside purview of Act. (Paras 1, 3,
4, 30 and 42)
(B) “Religious institution” and “temple”—Defined.
(Para 9)
(C) Religious practices vary from State to State, region to region, place to place
and sect to sect—When the Legislature makes a legislation, the existing state of affairs
and the basis on which such legislation has been made would be presumed to have been
known to it—Whereas the property for construction of a Samadhi or tomb by itself may
not amount to a permanent dedication involving public character of such institution, a
distinction must be borne in mind about a tomb constructed on the Samadhi of an
ordinary man and a saintly person. (Para 7)
Case law.—1954 SCR 277; 1991 Supp(2) SCC 579; AIR 1954 Mad 1027; (1964) 1
SCR 561; (1976) 2 SCC 417; (1986) 4 SCC 162; (2006) EWHC 2612 (Ch); 2007 (1) All ER
308; (2006) EWHC 1426 (Ch); (2006)7 SCC 490; 1956 SCR 756; (1974)2 SCC 288; 1959
Supp (2) SCR 601; (1969) 2 SCC 853; (1971) 1 SCC 574.
Counsel.—Mr. M.N. Rao, for the appellant; Mr. Manoj Saxena, for the respondents.
JUDGMENT
S.B. SINHA, J.—One Gedela Appala Swamy Naidu was owner of a piece of land
measuring 81 x 70 sq. yards situated in a secluded locality on the hills situated at village
Simhachalam. He died leaving behind him his wife Atchamamba and son G.
Satchidananda Murthy (plaintiff No. 1). He was buried in the same property. A Samadhi
was constructed thereon by his son. Plaintiff No. 1 shifted his residence at the said property.
In or about 1976, he installed statues of Appala Swamy Naidu and Shri Veera Bhoja
Vasantha Rayalu who was the Guru of his father. The Guru of Appala Swamy Naidu and
Appala Swamy Naidu himself had a large number of disciples. The idol of Godess Gayatri
Devi was also installed. It was named as “Sri Simha Saila Puri Virat Guru Mandiram” and
“Sri Simha Saila Puri Gayatri Peetam”.
2. Allegedly, after the death of Appala Swamy Naidu, the said property was being
managed by his brother Suryanarayana Naidu. When Smt. Atchamamba, wife of Appala
Swamy Naidu died in the year 1979, her dead body was buried by the side of her husband in
the same compound. A tomb was also constructed.
3. A notice was issued by respondent No. 1 as to why the plaintiffs should not
apply for registration of the temple/ institution as a public institution within the meaning of
Sections 38 and 39 of the A.P. Charitable and Hindu Religious Institutions and Endowments
Act, 1966 (for short “the Act”).
4. An application was filed before Respondent No. 1 for deletion of the said institution
from the list of Charitable and Hindu Religious Institutions and Endowment. The said
application was dismissed by an order dated 14.12.1982. In arriving at the said decision, a
large number of documents as also a report of the Assistant Commissioner Endowments,
Anakapalli and statements of some persons including one Satyanarayana, the first cousin of
the original plaintiff No. 1, were taken into consideration.
5. A suit was filed by the appellant in terms of the provisions of Section 78 of the Act.
By a judgment and order dated 31-12-1984, the said suit was decreed. Respondents filed a
first appeal before the High Court of Andhra Pradesh. The said appeal has been allowed by
reason of the impugned judgment.
6. Mr. M.N. Rao, learned senior counsel appearing on behalf of the appellant, in
support of the appeal raised the following contentions:
(i) The term “religious institution” as defined in Section 2(22) of the Act would not
bring within its purview a place where burial had taken place and tombs were
constructed.
(ii) The order of the Deputy Commissioner is a nullity being violative of the principles
of natural justice.
(iii) In view of the fact that the District Judge had inspected the property personally and
recorded his observations, the High Court should not have interfered therewith.
(iv) No member of the public having been examined by the respondents to prove
public participation in the affairs of the trust nor the public character thereof
having been proved, the High Court committed an error in arriving at its findings.
(v) Plaintiff No. 1 having not undertaken preaching of any religious tenets to
disciples and the suit property being not a place of worship for the general public
but one for the family, it should have been held to be a private institution.
(vi) The purported admission of G. Satyanarayana, at whose instance the litigation had
started, could not have been relied upon by the High Court.
7. Mr. Manoj Saxena, learned counsel appearing on behalf of the State, however,
would support the impugned judgment.
8. Before embarking upon the rival contentions of the parties as noticed hereinbefore,
we may notice some of the relevant provisions of the Act.
9. The terms “religious institution” and “temple” as defined in Sections 2 (22) and 2
(26) of the Act read as under:
“(22) ‘religious institution’ means a math, temple or specific endowment and
includes a Brindavan, Samadhi or any other institution established or maintained
for a religious purpose;
(26) ‘temple’ means a place by whatever designation known, used as a place of
public religious worship, and dedicated to, or for the benefit of, or used as of right
by, the Hindu community or any section thereof as place of public religious
worship and includes sub-shrines, utsava mantapas, tanks and other necessary
appurtenant structures and land;”
[Emphasis supplied]
10. Section 77 of the Act provides for the jurisdiction of the Deputy Commissioner to
decide the dispute inter alia in regard to the nature of endowment, viz., whether it is private
or public. The decision of the Deputy Commissioner is required to be published. A suit may
be filed in a Civil Court by a person who is aggrieved by the decision of the Deputy
Commissioner.
 11. The dedication was made in the year 1976. Not only the plaintiffs, as would
appear from the evidences brought on record but also the public had also made contributions
for construction of the property in question. For the purpose of entering into the temple,
tickets used to be sold. A Hundi meant for public donation was also installed. A medical
unit meant for the visiting public was found to have been set up there. A hall was
constructed within the premises of the institution known as Gita Bhawan.
12. While applying for water connection, admittedly, the plaintiffs categorically
declared that the same was necessary for the visiting public and not for any domestic
purpose. An inspection was made and it was found that the temple used to be visited
regularly and the average number of visitors per day was about 30 to 40. Regular pujas
are also held in the said temple.
13. Before entering into the factual controversy, we may notice the legal position. Mr.
Rao raised a contention that Hindu Law does not recognize dedication of any property for
construction of Samadhi or tomb as charitable or religious purpose.
14. In Saraswathi Ammal and Another v. Rajagopal Ammal, 1954 SCR 277, the
question as to whether worship at the Samadhi of a person would be valid under Hindu Law
came up for consideration. It was held that dedication must have a Shastraic basis. While,
however, saying so, it was noticed that there are instances where Hindu Saints had been
worshipped and entombed. The Court proceeded on the basis that “Their Lordships were
aware about the dedication of property on such tombs amongst Hindus”. It was, however,
observed:
“Such cases, if they arise, may conceivably stand on a different footing from the
case of an ordinary private individual who is entombed and worshipped thereat.
The case reported as The Board of Commissioners for the Hindu Religious
Endowments, Madras v. Pidugu Narasimham and others has also been referred to.
It is a somewhat curious case furnishing an instance where images of as many as
66 heroes who were said to have been killed in a war between two neighboring
kingdoms in the 13th century were installed in a regular temple and systematically
worshipped by the public for several centuries and inam grants therefor made
during the Moghul period. With reference to the facts of that case, the learned
Judges were inclined to hold that the worship was religious. This, however, is a
case of a grant from a sovereign authority and in any case is not an endowment for
worship of a tomb. In the three Madras cases in which it was held that the
perpetual dedication of property by a Hindu for performance of worship at a tomb
was not valid, there was no suggestion that there was any widely accepted practice
of raising tombs and worshipping thereat and making endowments therefor in the
belief as to the religious merit acquired thereby”
Therein a specific averment had been made in the plaint that institution of the Samadhi
and ceremonies connected with it were not usual in the community to which the parties
belonged.
15. In Malayammal and Others v. A. Malayalam Pillai and others, 1991 Supp (2)
SCC 579, a three-Judge Bench of this Court opined:
“12. The perpetual dedication of property for construction of a samadhi or a tomb
over the mortal remains of an ordinary person and the making of provisions for its
maintenance and for performing ceremonies in connection thereto however, has
not been recognised as charitable or religious purpose among the Hindus. But the
samadhi of a saint stands on a different footing. This was the consistent view taken
 by the Madras High Court in several cases, namely, C. Kunhamutty v. T. Ahmad
Musaliar, A. Draiviasundaram Pillai v. N. Subramania Pillai , Veluswami
Goundan v. Dandapani 6 . This Court in Saraswathi Ammal v. Rajagopal Ammal
has approved those decisions of the Madras High Court. Jagannatha Das, J., who
spoke for the court said (at p. 289) : “We see no reason to think that the Madras
decisions are erroneous in holding that perpetual dedication of property for
worship at a tomb is not valid amongst Hindus.””
[Emphasis supplied]
16. In Committee of Management of Institution known as Bodendraswami Mutt by its
managing member N. Ganesa Iyer v. President of Board of Commrs. for Hindu Religious
Endowments, AIR 1954 Mad 1027, whereupon Mr. Rao relied upon, the High Court stated:
“5. Sri Ramachandran on behalf of the Commissioner for Religious Endowments
supports the lower Court on the strength of — ‘Ratnavelu Mudaliar v. Comm .for
Hindu Religious and Charitable Endowments’, AIR 1954 Mad 398 (G). That was
indeed the case of an ancient institution which originated in a samadhi. Though it
continued to retain traces of its origin and guru-pooja was performed in the
precincts the same learned Bench Rajmannar C. J. and Venkatarama Aiyar J.
confirming a judgment of Krishnaswami Naydu J. also on the original side of the
High Court, held it to be a temple within the scope of Section 9(12). The facts of
that case were however peculiar and different from those in the present case. So
long ago as 7-8-1860 the Government made a grant in favour of
Chidambaraswami, who founded that institution. He was described as the founder
of the “Apparswami pagoda” and not of the “Apparswami Samadhi”. Since then, it
was treated admittedly in various proceedings as a temple. The facts of that case
can easily be differentiated from the present one in which a claim is made for the
first time that this admitted samadhi has now evolved into a temple. In that
decision, the following observations of Varada-chariar J. in—’Board of Commrs.
for the Hindu Religious Endowments v. P. Narasimham, AIR 1939 Mad 134 (H)
were quoted with approval.
“That what the evidence in this case describes as taking place in connection with
the institution is public worship can admit of no doubt. We think it is also
religious. The test is not whether it conforms to any particular school of Agama
Sastras; we think that the question must be decided with reference to the view of
the class of people who take part in the worship. If they believe in its religious
efficacy, in the sense that by such worship, they are making themselves the object
of the bounty of some superhuman power, it must be regarded as a religious
worship.
“Even if this very broad test were to be applied to the present case, I am not
prepared to hold that the mere presence of some idols and the festivals, which have
grown round the samadhi of Bodendra-swami, inevitable in the case of all tombs of
saints and great men in this country, would bring it within the definition of a
temple as defined in Section 9 (12). For these reasons, I would set aside the order
of the District Judge and hold that this institution is not a public temple as defined
in Section 9 (12) of the Act.”
17. Religious practices vary from State to State, region to region, place to place and
sect to sect. When the legislature makes a legislation, the existing state of affairs and the
basis on which such legislation has been made would be presumed to have been known to it.
Whereas the property for construction of a Samadhi or tomb by itself may not amount to a
permanent dedication involving public character of such institution, a distinction must be
borne in mind about a tomb constructed on the Samadhi of an ordinary man and a saintly
person. In a case falling within the latter category, the answer to the question, in our
opinion, should be rendered in the affirmative.
18. Ordinarily, even the body of an ordinary Hindu would not be buried. It would be
cremated. The very fact that the brother of the appellant Suryanarayana Naidu was not
buried there is itself a pointer to show that the same was not a family custom. Plaintiffs
themselves while referring to burial of Smt. Acthamamba stated that she was an illiterate and
had no religious inclination at all. No such statement had been made in respect of her
husband and others who have been buried. Plaintiffs were, therefore, aware of the said
distinction.
19. In Tilkayat Shri Govindlalji Maharaj v. The State of Rajasthan and others, (1964)
1 SCR 561, Gajendragadkar, J. speaking for a Constitution Bench, in a matter relating to the
famous Nathdwara Temple where the denomination in question did not recognize the
existence of ‘Sadhus’ or ‘Swamis’ other than the descendants of ‘Vallabha’, and no other
ritualistic practices were adopted and where the cult did not believe in celibacy as well as did
not regard that giving up worldly pleasures and the ordinary mode of a house-holder’s life
were essential for spiritual progress, opined:
“The question as to whether a Hindu temple is private or public has often been
considered by judicial decisions. A temple belonging to a family which is a private
temple is not unknown to Hindu law. In the case of a private temple it is also not
unlikely that the religious reputation of the founder may be of such a high order
that the private temple founded by him may attract devotees in large numbers and
the mere fact that a large number of devotees are allowed to worship in the temple
would not necessarily make the private temple a public temple. On the other
hand, a public temple can be built by subscriptions raised by the public and a deity
installed to enable all the members of the public to offer worship. In such a case,
the temple would clearly be a public temple. Where evidence in regard to the
foundation of the temple is not clearly available, sometimes, judicial decisions rely
on certain other facts which are treated as relevant. Is the temple built in such an
imposing manner that it may prima facie appear to be a public temple? The
appearance of the temple of course cannot be a decisive factor; at best it may be a
relevant factor. Are the members of the public entitled to an entry in the temple?
Are they entitled to take part in offering service and taking Darshan in the temple,?
Are the members of the public entitled to the take part in the festivals and
ceremonies arranged in the temple? Are their offerings accepted as a matter of
right? The participation of the member of the public in the Darshan in the temple
and in the daily acts of worship or in the celebrations of festival occasions. may
be a very important factor to consider in determining, the character of the temple.
In the present proceedings, no such evidence has been led and it is, therefore, not
shown that admission to the temple is controlled or regulated or that there are other
factors present which indicate clearly that the temple is a private temple. Therefore,
the case for the Tilkayat cannot rest on, any such considerations which, if proved,
may have helped to establish either that the temple is private or is public.”
20. It was, therefore, clearly not a case where Shastraic basis was held to be the sine
qua non for the purpose of arriving at a decision that the institution in question would fall
within the purview of the terms ‘religious and charitable institution’ or not.
 21. In Dhaneshwarbuwa Guru Purshottambuwa, owner of Shri Vithal Rukhamai
Sansthan v. The Charity Commissioner, State of Bombay, (1976) 2 SCC 417, this Court
opined that while each case of endowment as to the character of temple would depend on the
history, tradition and facts, the presence of the features enumerated therein may be held to be
sufficient to hold that the same satisfies the tests which were required to be fulfilled in
arriving at a decision that the temple in question was a public trust.
22. We are not, however, oblivious of the fact that only because members of the public
are freely admitted to the temple, that by itself would not be sufficient to come to the
conclusion that the temple was a public institution.
23. In Hari Bhanu Maharaj of Baroda v. Charity Commissioner, Ahmedabad, (1986) 4
SCC 162, upon which again Mr. Rao relied upon, the question as to whether the members of
the public had visited the Mandir as invitees and nothing more was held to be dependant
upon the facts and circumstances of each case.
24. In view of the fact that members of the public could visit the temple only on
payment of some amount is itself indicative of the fact that they could do so as of right. It
has been found as of fact that there used to be regular visitors in the temple. They would not
only pay their obeisance to the great men who had been buried there but also offer pujas at
the temple. It has also been found as of fact that various types of pujas were being performed
by the public at the temple on payment. Pamphlets had been issued by the plaintiffs
themselves for the aforementioned purpose. The said pamphlets were marked as Exs. B-7
and B-8.
25. We have noticed hereinbefore that the Act itself recognizes Samadhi. A religious
institution, thus, includes a Samadhi. When it is established or maintained for public purpose
together with a temple, it would indisputably come within the purview of the said definition
of the said terms.
26. The learned District Judge in his judgment had observed that no single member of
public was examined as a witness. We fail to understand the said approach of the learned
Judge as the plaintiffs in the suit were questioning a quasi - judicial order passed by a
statutory authority, and, thus, nothing prevented them from doing so to prove the contrary.
The learned District Judge has also found that the evidences clearly establish that the
institution, to some extent, has appearance of a temple and in addition to the temple, there is
Samadhi of the father of plaintiff No. 1.
27. The conduct of the appellant cannot also be lost sight of Shri Gedela
Suryanarayana had written a letter dated 14.01.1972 (Ex. B-16) wherein, while asking for
water connection, it was categorically stated:
“Moreover, this Mathalayam is purely being maintained as per the Hindu religious
mythology for the devotees of God but not for the use of any domestic purposes.
Therefore, I earnestly request that free water supply through water tap may kindly
be accorded and sanctioned without the question of any water reading meter to
this Mathalayam”
28. He reiterated the aforementioned stand in his letter dated 22.05.1975.
29. Yet again by a letter dated 25.01.1978, plaintiff No. 2 stated:
 “The above named Matalayam was established long ago on the Up-hill,
Simhachalam with the kind help extended by the disciples and devotees for
preaching philosophical teachings according to Hindu Mythology.
Due to non-availability of drinking water in the above Mathalayam, the devotees
attending there are undergoing lot of inconvenience.”
30. These admissions on the part of the plaintiffs had rightly been held to be relevant
by the High Court for determining the question. The temple, therefore, was not established
as a private place of worship by the plaintiffs or their family members but it had been
established with the help extended by the disciples and members of the public. The
factum of issuance of pamphlets or entry tickets, as noticed by the High Court, had not been
denied or disputed by plaintiff No. 2 in his reply dated 26.12.1978 in response to the
notice issued by the Deputy Commissioner. The conduct of the parties in not even denying
the said letters containing certain vital admissions on their part would, thus, clearly go to
show that the judgment of the High Court does not suffer from any infirmity. Rule of
estoppel in a case of this nature would be clearly applicable.
31. In Hodgson & Ors v. Toray Textiles Europe Ltd & Ors., (2006) EWHC 2612 (Ch),
it was stated:
“The essential ingredients of estoppel by representation are that:
(i) A has made a clear and unequivocal representation to B about his legal rights,
intending it to be acted upon;
(ii) B has acted in reliance on that representation and
(iii) It would be inequitable for A to resile from the representation he has made.”
32. In Trustee Solutions Ltd & Ors. v. Dubery & another, 2007 (1) All ER 308 :
(2006) EWHC 1426 (Ch), it was stated:
“Group estoppel binds all beneficiaries under the trust, as well as the trustees and
the company.
The principle
The principle on which Miss Rich relies is that formulated by Lord Denning MR in
Amalgamated Investment & Property Co Ltd. V. Texas-Commerce International
Bank Ltd., (1982) 1 QB 84, 121:
“If parties to a contract, by their course of dealing, put a particular interpretation on
the terms of it—on the faith of which each of them—to the knowledge of the other
—acts and conducts their mutual affairs—they are bound by that interpretation just
as much as if they had written it down as being a variation of the contract. There is
no need to inquire whether their particular interpretation is correct or not—or
whether they were mistaken or not—or whether they had in mind the original
terms or not. Suffice it that they have, by their course of dealing, put their own
interpretation on their contract, and cannot be allowed to go back on it.””
33. In Mukherjee on Indian Trust Act, page 177, it is stated:
“The essential conditions to attract the application of the cypres doctrine are:
(i) the donor (rather the testator) must clearly evidence a general intention of charity
when the particular charitable disposition cannot be carried into effect, the Court,
in order that the general charitable intention may not be disappointed,
 makes a cypres application of the fund and applies it to a purpose which coincides
as nearly as possible with the object that has failed;
(ii) there must be a failure of the particular object of charity as specified by the
testator, or there must be a surplus left after satisfying the particular purpose;
(iii) the Court should choose such objects as are akin to the object that had failed;
(iv) the gift or trust must be by Will and not by a deed inter vivos (by case law).”
34. In State of W.B. v. Sri Sri Lakshmi Janardan Thakur, (2006) 7 SCC 490, this Court
opined:
“15. In order to ascertain whether a trust is private, the following factors are
relevant:
(1) If the beneficiaries are ascertained individuals.
(2) If the grant has been made in favour of an individual and not in favour of a
deity.
(3) The temple is situated within the campus of the residence of the donor.
(4) If the revenue records or entries suggest the land being in possession of an
individual and not in the deity. On the other hand an inference can be
drawn that the temple along with the properties attached to it is a public
trust:
(1) If the public visit the temple as of right.
(2) If the endowment is in the name of the deity.
(3) The beneficiaries are the public.
(4) If the management is made through the agency of the public or the
accounts of the temple are being scrutinised by the public.”
35. Even otherwise, the principle of estoppel shall apply in this case.
36. The question, however, which remains is as to whether the idol having been
installed in the residential premises should be held to be a part of the charitable and religious
institution. Each case, as is well-known, will depend upon the factual matrix obtaining
therein. We may in this behalf notice some decisions which are operating in the field.
37. In Deoki Nandan v. Murlidhar, 1956 SCR 756, this Court opined:
“Firstly, there is the fact that the idol was installed not within the precincts of
residential quarters but in a separate building constructed for that very purpose
on a vacant site. And as pointed out in Delroos Banoo Begum v. Nawab Syed
Ashgur Ally Khan, it is a factor to be taken into account in deciding whether an
endowment is private or public, whether the place of worship is located inside a
private house or a public building. Secondly, it is admitted that some of the idols
are permanently installed on a pedestal within the temple precincts. That is more
consistent with the endowment being public rather than private. Thirdly, the puja
in the temple is performed by an archaka appointed from time to time.”
[See also Bihar State Board of Religious Trusts v. Bhubneshwar Prasad Choudhary,
(1974) 2 SCC 288.]
38. In State of Bihar v. Charusila Dasi, 1959 Supp (2) SCR 601, while referring to
Deoki Nandan (supra), it was observed:
 “In Deoki Nandan v. Murlidhar (supra) this Court considered the principles of law
applicable to a determination of the question whether an endowment is public or
private, and observed:
“The cardinal point to be decided is whether it was the intention of the founder
that specified individuals are to have the right of worship at the shrine, or the
general public or any specified portion thereof. In accordance with this theory, it
has been held that when property is dedicated for the worship of a family idol, it is
a private and not a public endowment, as the persons who are entitled to worship
at the shrine of the deity can only be the members of the family, and that is an
ascertained group of individuals. But where the beneficiaries are not members of a
family or a specified individual, then the endowment can only be regarded as
public, intended to benefit the general body of worshippers.” One of the facts
which was held in that case to indicate that the endowment was public was that the
idol was installed not within the precincts of residential quarters but in a
separate building constructed for that very purpose on a vacant site. We do not
suggest that such a fact is by itself decisive of the question. The fact that the temple
is outside the dwelling house is only a circumstance in favour of it being regarded
a public temple, particularly in Madras (except Malabar); there are, however,
private temples in Bengal which are built outside the residential houses of donors
(see the Hindu Law of Religious and Charitable Trust, Tagore Law Lectures by the
late Dr B.K. Mukherjea, 1952 Edn., p. 188). In the case before us, the two temples
were constructed outside the residential quarters, but that is only one of the
relevant circumstances. We must construe the deed of trust with reference to all its
clauses and so construed, we have no doubt that the trusts imposed constitute
a public endowment. There is one other point to be noticed in this connection.
The deed of trust in the present case is in the English form and the settlor has
transferred the properties to trustees who are to hold them for certain specific
purposes of religion and charity; that in our opinion is not decisive but is
nevertheless a significant departure from the mode a private religious endowment
is commonly made.”
39. In Goswami Shri Mahalaxmi Vahuji v. Ranchhoddas Kalidas, (1969) 2 SCC 853,
this Court held:
“11. Yet another contention taken on behalf of the appellant is that the architecture
of the building in which Gokulnathji is housed and the nature of that building is
such as to show that it is not a public temple. It was urged that that building
does not possess any of the characteristics of a Hindu temple. It has not even a
dome. This contention again has lost much of its force in view of the decision of
this Court referred to earlier. Evidence establishes that Vallabha’s son and his
immediate successor Vithaleshwar had laid down a plan for the construction of
temples by the Vallabha Sampra dayees. He did not approve the idea of
constructing rich and costly buildings for temples. Evidently he realised that
religious temple buildings were not safe under the Mohammedan rule. For this
reason he advised his followers to construct temples of extremely simple type.
The external view of those temples gave the appearance of dwelling houses. It
appears to be a common feature of the temples belonging to the Vallabha
Sampradayees that the ground-floor is used as the place of worship and the first
floor as the residence of Goswami Maharaj. Therefore the fact that Gokulnathji
 temple at Nadiad had the appearance of a residential house does not in any
manner militate against the contention that the temple in question is a public
temple.”
40. In Bihar State Board Religious Trust, Patna v. Mahant Sri Biseshwar Das, (1971)
1 SCC 574, it was stated:
“20. An attempt appears to have been made in the trial Court to establish that
certain ceremonies, such as Sankalpa, Pratistha and Utsarga, were performed at the
time when idols were installed in the temple. In the case of temples Pratistha and
not Utsarga, if established, would indicate dedication to the public. (See Kane’s
History of Dhar-masastras, Vol. 2, Part II, 892 to 893 and Deoki Nandan v.
Murlidhar). Unfortunately for the appellant Board, there was no clear evidence of
the particular ceremonies performed at the time when Gaibi Ramdasji installed the
idols except a general statement from the respondent that when idols are installed
in temples Pran Pratistha is generally performed. Support for a dedication to
the public was also sought from the fact that the idols were installed permanently
on a pedestal (Sinhasan) and the temple was constructed on grounds separate
from the residential quarters of the Mahant. In the first place, such factors are
also found in private temples and Mutts, and therefore, are not conclusive. In the
second place, there was the evidence that the Mahant’s residential quarters are in
fact not separate from the temple premises.”
41. In the instant case, the dedication was made even according to he appellants
long back. Constructions for residential purposes were made thereafter. It is not a case
where the dedication of the property occurred subsequent to the constructions of the
residential houses. It is also not a case where the idol was installed inside the residential
premises.
42. We, therefore, in view of the decisions of this Court, are of the opinion that merely
because the appellant has a residential house in the portion of the property which is the
subject-matter of the trust, the same is not outside the purview of the Act.
43. For the reasons aforementioned, there is no merit in this appeal which is dismissed
accordingly. In the facts and circumstances of this case, there shall be no order as to costs.
Appeal dismissed.

[2007 (2) TNCJ 282 (SC)]

SUPREME COURT
BEFORE:
DR. ARIJIT PASAYAT AND LOKESHWAR SINGH PANTA, JJ.
COMMISSIONER OF CENTRAL EXCISE, CHANDIGARH ....Appellant
Versus
M/S. PEPSI FOODS LTD. …Respondent
[Civil Appeal No. 5118 of 2002, decided on 29 May, 2007]
th

Central Excise Act, 1944—Sections 11-A Proviso and 4 (4) (d) (ii)—Removal of
goods and payment of duty—Entitlement to return of amount paid—No intimation
about sales tax exemption or deposit made to range officer—Matter pending before
High Court—CEGAT presently known as Customs, Excise and Service Tax Tribunal to
decide—Whether benefit under Section 4 (4) (d) (ii) of Act available to be granted?
(Paras 1, 3, 5 and 7)
JUDGMENT
DR. ARIJIT PASAYAT, J.—Challenge in this appeal is to the order passed by the
Customs Excise and Gold (Control) Appellate Tribunal, West Block, New Delhi (in
short ‘CEGAT’) allowing the appeal of the respondent (hereinafter referred to as the
‘assessee’).By the impugned order, the CEGAT also held that the removal of goods and
payment of duty took place between July, 1995 to March, 1996. The assessee had paid
differential duty as worked out by them also in November, 1996. In these circumstances,
there is no factual basis to the allegation that the assessee suppressed any material facts.
Show-cause notice dated 1.6.2000 was issued almost four years after the payment of the
differential duty by the assessee, well beyond the normal period allowed for duty demands
under Section 11-A of the Central Excise Act, 1944 (in short ‘the Act’). Demand of duty for
longer period upto 5 years is permissible only if the short levy of duty is on account of
suppression, mis-declaration of facts, fraud etc. as provided in the proviso to Section 11-A of
the Act. These elements constituting contumacious conduct by the assessee are entirely
lacking in the present case. Therefore, the appeal was allowed on the ground of time bar
without going into the merits of the case. It was held that assessee was entitled to return of
amount paid by them over and above the differential duty of Rs.67,88,027/- paid on
28.11.1996.
2. Background facts in a nutshell are as follows:—
Assessee claimed certain deductions from the price towards sales tax as their claim for
exemption from the sales tax was turn down by the sales tax authorities including the
Tribunal in 1995. Duty was accordingly assessed and paid on the value worked out after
deducting the sales tax payable from the price. While the dispute with sales tax authorities
was pending before the Punjab and Haryana High Court assessee re-assessed the clearance by
including the sales tax element originally excluded from the price. Assessee paid the
differential duty of Rs.67,88,027/- on 28.11.1996. On 1.6.2000 Commissioner of Central
Excise issued show cause notice alleging that assessee had evaded duty of Rs.95,03,238/- in
regard to Rs.2,37,58,095/- collected towards sales tax. The demand was confirmed by the
order in original passed by the Commissioner of Central Excise, Chandigarh II. A demand
for differential duty of Rs.27,15,211/- was made after adjusting the payment made. Penalty
of Rs.10 lakhs was also imposed. Said order was challenged before the CEGAT who held
that the demand was barred by time as the period of assessment was between July 1995 to
March 1996 and payment of differential duty was made on 28.11.1996 of Rs.67,88,027/-.
3. In support of the appeal, learned counsel for the appellant submitted that the
exemption was claimed under the relevant sales tax laws but there was collection of sales tax
as was admitted by the accountant on 26.10.1999. The assessee also admitted about the
collection on 10.11.1999. The amount collected was Rs.2,37,58,095/-. It has been fairly
accepted by the assessee that there was no intimation given about the sales tax exemption or
the deposit made to the range officer or any other authority.
4. It has been categorically found by the Commissioner that there was no evidence of
any intimation produced by the assessee. It was only indicated in the reply to the show-cause
notice that the matter was pending. The Commissioner recorded the following finding:
“3.6 In their reply dated 8.2.2001 to the show cause notice, the Noticee accepted
that the amount collected by them towards sales tax and not deposited with the
 sales tax department would form part of the price of soft drink concentrate.
They have further contended that in such an event the duty payable has to be
deducted to arrive at the assessable value in terms of Section 4(4)(d)(ii) i.e. the
total amount of duty payable has to be deducted from cum-duty price to arrive at
the assessable value in order to calculate the total duty payable. In other words, the
Noticee has calculated Excise duty by considering the total amount of sales tax
collected as cum-duty price and after taking into consideration the provisions of
Section 4(4)(d)(ii) calculated the amount of duty payable and subsequently
deposited the Central Excise duty amounting to Rs.67,88,027/-. The Noticee has
relied upon the Hon’ble Tribunal’s judgment in the case of Sri Chakra Tyres Ltd.
v. Collector of Central Excise, Madras, 1999 (108) ELT 361 (Tribunal).
The quoted judgment is not relevant in this case as the Noticee has not collected
the disputed amount as wholesale price of the goods, but has collected the same as
amount of sales tax payable. In case sales tax had been paid to the concerned
department no Central Excise duty would have been leviable thereon.”
5. It is to be noted that the assessee submitted that the sales tax authorities denied the
exemption and the matter was pending before the High Court. The deposit was made as there
was a dispute. To a query made as to why the deposit was made even there was nothing
payable as claimed, the reply was that it was paid due to pressure. There was no averment
made at any stage taking such a plea.
6. The extended period of limitation is applicable as (a) no information was given
regarding deposit and (b) no information was given about the alleged claim of exemption and
the calculation.
7. In the aforesaid background, the CEGAT presently known as Customs, Excise and
Service Tax Tribunal has to decide whether the benefit under Section 4(4)(d)(ii) is available
to be granted. In that regard, we express no opinion. It is stated that the writ petition
No.17685/94 is pending before the Punjab and Haryana High Court. It is for the Tribunal to
take note of the decision if any rendered in that petition. The appeal is allowed to that extent.
There will be no order as to costs.
Appeal partly allowed.

[2007 (2) TNCJ 285 (SC)]

SUPREME COURT
BEFORE:
R.V RAVEENDRAN AND LOKESHWAR SINGH PANTA, JJ.
B. ARVIND KUMAR …Appellant
Versus
GOVERNMENT OF INDIA AND OTHERS ...Respondents
[Civil Appeal No. 3540 of 2002, decided on 28 May, 2007]
th

Code of Civil Procedure, 1908—Section 80—Transfer of Property Act, 1882—

Section 105—Lease-hold property—Proprietor declared insolvent—Property sold in
auction, which was duly registered—Dispossession during Emergency period—
Death of auction purchaser—Suit for declaration of title and mesne profit by son—Suit
rightly dismissed. (Paras 2, 3 and 19)
Important Points
Essential ingredients of lease are: (a) There should be a transfer of a right to enjoy an
immovable property; (b) Such transfer may be for a certain term or in perpetuity; (c) The
transfer should be in consideration of a premium or rent; (d) The transfer should be a
bilateral transaction, the transferee accepting the terms of transfer.
JUDGMENT
R.V. RAVEENDRAN, J.—This is an appeal by special leave against the judgment and
decree dated 10.7.2001 in RFA No.181/1996 passed by the High Court of Karnataka
reversing the judgment and decree dated 8.12.1995 passed by the III Addl. City Civil Judge,
Mayo Hall, Bangalore in his suit O.S.No.10653/1987. For convenience, the appellant will
also be referred to as ‘plaintiff’ and respondents as ‘defendants’.
2. Appellant filed the said suit alleging that suit land measuring 2550 sq. yds. had been
leased in perpetuity by the military authorities (General Officer Commanding, Madras
District, Bangalore) to M/s S. Giridharilal & Son, a proprietary concern under a
registered lease deed dated 30.9.1921; that the lessee put up several structures thereon and
was in possession and enjoyment thereof as absolute owners; that G. Anraj Sankla, proprietor
of Giridharilal & Son was declared as insolvent in Insolvency Case No.7 and 12 of 1940 on
the file of the District Judge, Civil & Military Station, Bangalore and the Official Receiver
took charge of the insolvent’s properties including the said land with buildings (for short ‘suit
property’); that the Official Receiver put up the suit property for sale by auction; that M.
Bhowrilal, father of plaintiff was the highest bidder and the sale of the right, title and interest
of Anraj Sankla that is, his leasehold rights, in regard to the suit property in favour of M.
Bhowrilal was confirmed on 25.8.1941 and Sale Certificate was issued to him on 29.8.1941
which was duly registered. After the death of his father on 21.7.1969, he came into
possession and enjoyment of the suit property. According to the appellant though the lease
was one in perpetuity, it was an absolute grant and since no premium or rent was fixed, the
enjoyment was to be perpetual and absolute. When matters stood thus, the Commanding
Officer of Station Headquarters, Bangalore (Fourth Defendant), under instructions from the
first defendant, illegally and unauthorizedly dispossessed him from the suit property in
September, 1975, during the emergency period. Thereafter, he was corresponding with the
Defence Ministry for relief, and they went on promising to look into the matter. Ultimately,
as they failed to give any relief, he issued a notice through counsel under Section 80 of the
Code of Civil Procedure on 8.5.1984, followed by another notice dated 13.4.1987, claiming
possession of the suit property. As the said demand was not complied with, he filed the
suit (O.S. No.10653/1987) on 21.8.1987 for the following reliefs:
(a) for a declaration that he was the absolute owner of the suit property;
(b) for a direction to the defendants to deliver back possession of the suit property to
him; and
(c) for mesne profits, costs and other appropriate reliefs.
3. The suit was resisted by the defendants-respondents. They ontended that S.
Giridharilal & Son was only a lessee and therefore, plaintiff even if he was the successor-in-
interest could under no circumstances, claim absolute ownership. It was also alleged that
they had taken action for resumption of the leased land for contravention of the terms
of lease (construction of unauthorized structures and failure to notify the lessor about transfer
of the leasehold rights) and the suit land was surrendered without protest. The allegation
of forcible dispossession in September, 1975 was denied. It was also contended that the
only relief sought by the plaintiff in his several representations and letters, in respect of the
resumption of the leased land, was compensation for the structures; that the claim was not
entertained as the structures were unauthorized; and that if there was any dispute or
outstanding claim in that behalf, he should have sought reference to arbitration in terms of the
lease-deed, and the suit was misconceived and not maintainable.
4. On the said pleadings, the trial Court framed the following issues :
(1) Whether the plaintiff proves that he is the absolute owner of the suit
property?
(2) Whether the defendants prove that there was contravention of the
terms of lease deed dated 30.9.1921?
(3) Whether the defendants prove that the plaintiff has expressed his intention
not to seek possession of the suit property?
(4) Whether the defendants prove that the suit is barred by time?
(5) Whether the defendants prove that suit is not maintainable for the
reasons stated in para 12 of the Written Statement?
(6) Whether the defendants prove that suit is bad for non-joinder of necessary
parties?
(7) Whether the defendants prove that court-fee paid is insufficient?
(8) What relief the parties are entitled to?
Plaintiff examined himself as PW-1 and got exhibited Ex.P-1 to Ex.P-43. The
defendants also examined one witness. After appreciating the oral and documentary
evidence, the trial Court decreed the suit in part. It answered the first issue against the
plaintiff by holding that plaintiff had not acquired ownership. It held issues (2) to (6)
against the defendants. It held that issue No.(7) did not survive for consideration. As a
consequence, it rejected the prayer for declaration of title and granted the relief of
possession to the Plaintiff and ordered a separate enquiry regarding mesne profits.
5. Feeling aggrieved, the defendants filed RFA No.181/1996 before the High Court.
The High Court by judgment and decree dated 10.7.2001 allowed the appeal and dismissed
the suit. The judgment of the High Court is based on the following findings of facts:
(a) The lease under deed dated 30.9.1921 (Ex.P-1) was not a lease in perpetuity, but
only a tenancy at will.
(b) The sale certificate in favour of plaintiff’s father (Ex.P-3 dated 29.8.1941) was
not followed by a registered instrument transferring the lessee’s interest in
favour of plaintiff’s father. Therefore, no title was conveyed to plaintiff’s father,
in regard to the suit land.
(c) There was a clear embargo in the lease deed in respect of transfer of the
leasehold interest, without notice to the lessor and without the consent of the
lessor. There was no notice to the lessor in regard to the sale of leasehold right
nor consent for such auction sale. Therefore, the transfer of leasehold interest
was void, even though it was a Court sale.
(d) The possession of plaintiff’s father and later that of plaintiff was no better
than that of a trespasser as there was no valid transfer.
 (e) As plaintiff had failed to prove title or leasehold interest, he was not entitled to
recover possession on the basis of possessory title. Nor was he entitled to
restitution of possession, on the facts of the case.
6. The appellant has challenged the said judgment and decree of the High Court. He
contends that the findings recorded by the High Court are erroneous and contrary to the
evidence and therefore, the judgment of the High Court is liable to be set aside. The
contentions of appellant gives rise to the following points for consideration :
(i) Whether the lease under deed - Ex.P-1 dated 30.9.1921, is a perpetual lease?
(ii) Whether the plaintiff’s father did not secure any manner of right, title or interest in
the suit property, as the sale certificate in his favour was not followed by a
registered deed of transfer?
(iii) Whether the transfer of leasehold interest in favour of plaintiff’s father was void,
for want of notice to lessor and consent of the lessor?
(iv) Whether the plaintiff was forcibly dispossessed in September, 1975 and entitled to
a decree for possession?
(v) Whether the suit was barred by limitation?
Re: Point (i)
7. Section 105 of Transfer of Property Act, 1882 defines lease as follows:
“A lease of immovable property is a transfer of a right to enjoy such property,
made for a certain time, express or implied or in perpetuity, in consideration of a
price paid or promises or of money, a share of crops, service or any other thing of
value, to be rendered periodically or on specified occasions to the transferor by the
transferee, who accepts the transfer on such terms.
Lessor, Lessee, Premium and Rent defined.—The transferor is called the lessor, the
transferee is called the lessee, the price is called the premium, and the money,
share, service or other thing to be so rendered is called the rent.”
Thus the essential ingredients of a lease are : (a) There should be a transfer of a right to
enjoy an immovable property; (b) Such transfer may be for a certain term or in perpetuity; (c)
The transfer should be in consideration of a premium or rent; (d) The transfer should be a
bilateral transaction, the transferee accepting the terms of transfer.
8. In this case the plaintiff claims that the suit land was leased in perpetuity by the
General Officer Commanding, Madras District, Bangalore under Ex.P1 dated 30.9.1921.
Condition II provides that the lessee can erect buildings on the schedule land only in
accordance with the plan with the written permission of the General Officer Commanding or
by any of his principal staff officers. Condition III provides that the land shall not be
used for any purpose other than that specified in the lessee’s application. Condition
III (A) provides that no rent is payable in respect of the lease. Condition IV provides
whenever it is intended to transfer the leasehold interest by sale, gift, mortgage or exchange,
the lessee or the intending transferor shall give the lessor one month’s notice in writing
before the transfer is completed; and the lessor shall have the power to veto on any such
transfer within one month. It further provides that if notice of such intended transfer was not
given or if such transfer was made after the same has been vetoed, the transfer shall be void.
Condition V provides that every person, on whom the lessee’s interest in the land or the
buildings erected on the land may devolve by transfer, by succession or by operation of law,
shall send to the lessor within one month from the date of such devolution, a report in writing
of that fact together with such particulars as may be required. Condition VII provides that so
long as the lessee observes the conditions to be observed by him, he may subject to
condition IX, hold the land for ever without interruption. Condition IX provides that the
lessor may resume the land or any portion thereof at any time after giving one month’s notice
in writing and on payment of compensation for the buildings erected on the land, upon
proper authority; and if there is any dispute as to the amount of such compensation, the same
shall be referred to a Committee of Arbitration and the lessee shall be bound by the decision
of such Committee of Arbitration.
9. To decide the duration of the lease, the deed has to be read as a whole. The deed
dated 30.9.1921 does not specify any duration, but permits the lessee to hold the land forever
subject to the right of the lessor to resume the land by giving one month’s notice. There is no
grant in perpetuity. The right of the lessor to resume the land by giving a month’s notice, is
unconditional at the absolute will and discretion of the lessor, whenever he desires. These
terms indicate that though the instrument was termed as a lease, it only granted permissive
occupation terminable at the will of the owner, and therefore, at best a tenancy at will. The
absolute discretion to resume the land at any time without assigning any reason, and absence
of any express grant in perpetuity and absence of any consideration, militates against the
instrument being construed as a lease in perpetuity. The learned counsel for appellant
submitted that courts have taken the view that existence of a mere provision for forfeiture for
non-payment of rent or other specified breach, in a deed granting permanent lease, will not
make the lease non-permanent. Such line of decisions, may not assist the appellant as a
provision for determination of the lease for a specified breach, is in no way comparable to
reservation of an absolute right to resume at will without assigning any reason, in a lease
without consideration. We, therefore, affirm the finding that Ex.P1 is not a lease in
perpetuity. We, however, desist from examining the further question whether the lease
itself was invalid for want of consideration, as such a contention was not raised in the written
statement nor urged before the trial Court or High Court.
Re : Point (ii)
10. The plaintiff has produced the original registered sale certificate dated 29.8.1941
executed by the Official Receiver, Civil Station, Bangalore. The said deed certifies that
Bhowrilal (father of plaintiff) was the highest bidder at an auction sale held on 22.8.1941, in
respect of the right, title, interest of the insolvent Anraj Sankla, namely the leasehold right in
the property described in the schedule to the certificate (suit property), that his bid of
Rs.8,350 was accepted and the sale was confirmed by the District Judge, Civil and Military
Station, Bangalore on 25.8.1941. The sale certificate declared Bhowrilal to be the owner of
the leasehold right in respect of the suit property. When a property is sold by public auction
in pursuance of an order of the Court and the bid is accepted and the sale is confirmed
by the Court in favour of the purchaser, the sale becomes absolute and the title vests in the
purchaser. A sale certificate is issued to the purchaser only when the sale becomes
absolute. The sale certificate is merely the evidence of such title. It is well settled that when
an auction purchaser derives title on confirmation of sale in his favour, and a sale certificate
is issued evidencing such sale and title, no further deed of transfer from the court is
contemplated or required. In this case, the sale certificate itself was registered, though such a
sale certificate issued by a Court or an officer authorized by the court, does not require
registration. Section 17(2)(xii) of the Registration Act, 1908 specifically provides that a
certificate of sale granted to any purchaser of any property sold by a public auction by a civil
or revenue officer does not fall under the category of non testamentary documents which
require registration under sub- section (b) and (c) of Section 17(1) of the said Act. We,
therefore, hold that the High Court committed a serious error in holding that the sale
certificate did not convey any right, title or interest to plaintiff’s father for want of a
registered deed of transfer.
Re : Point (iii)
11. Condition IV of the lease deed provides that a transfer of the lease by way of sale,
gift, mortgage or exchange shall be void if intimation thereof is not given to the lessee.
Condition V requires a report in writing to be sent to the lessor by the transferee of lessee’s
interest by succession or operation of law. Condition IV deals with transfers inter vivos
(transfer from one living or juristic person to another living or juristic person) and Condition
V deals with devolution by succession or by operation of law including auction sales
confirmed by Court. Only transfers in violation of Condition IV are void. No penal
consequence is specified for failure to comply with Condition V. Therefore, it is not possible
to hold that the auction sale of the leasehold right in favour of Bhowrilal was void for want of
notice to the lessor.
Re : Points (iv) and (v)
12. In this case the plaintiff approached the Civil Court with a specific case that he was
the owner of the suit property and that he was illegally dispossessed by the defendants in
September, 1975 and sought a declaration of title as absolute owner and for delivery of
possession. He also contended that as the suit was filed within 12 years from the date of
dispossession, the suit was within time. The plaintiff admitted in the plaint that the suit
property was leased to M/s. S. Giridharilal and Son and his father purchased only the
leasehold right in a Court auction in 1941. Therefore, the trial Court rightly found that the
plaintiff did not establish ownership to the suit property and therefore, did not grant the relief
of declaration of title. That finding attained finality as the Plaintiff did not choose to
challenge the rejection of the prayer for declaration of title. Therefore, the only question that
remained for consideration was whether the plaintiff has made out any case for the relief of
possession. Plaintiff’s specific case is that in September, 1975 during emergency period, he
was forcibly dispossessed. Obviously, therefore, he will be entitled to a decree for
possession only if he establishes that he was forcibly dispossessed from lawful possession
and such dispossession was within 12 years prior to the date of the suit (21.8.1987).
13. The plaintiff who was examined as PW1 stated that in September, 1975, fourth
defendant forcibly dispossessed him from the suit property without any notice. No other
witness was examined to corroborate his testimony. No other evidence was let in to
show that he was in possession of the suit property in September, 1975 or that he was
illegally dispossessed. In his cross-examination, he admitted that he was never in personal
possession and that his tenant was in possession. There was also no evidence in regard to the
measurement of the alleged structures. The evidence of plaintiff shows that neither he nor his
alleged tenant gave any complaint regarding the forcible dispossession. In fact, no
document was produced to show that any tenant of plaintiff was in possession in 1975.
The documentary evidence produced by the plaintiff himself, however, tell a different story
regarding dispossession.
14. Ex.P-10 dated 6.3.1976 is a letter from plaintiff to fourth defendant. In that letter,
he makes a vague allegation that the defendants were trying to commit acts of trespass and
take forcible possession of the property. The said letter was sent nearly six months after
September, 1975. If he had already been dispossessed from the suit property in September,
1975, the tenor of the letter would have been completely different. Be that as it may.
 15. Ex.P-16 dated 27.4.1977, is a letter written by the plaintiff’s advocate. It states that
plaintiff had already furnished necessary documents and therefore the fourth defendant
should take immediate steps to resolve the question of compensation. This document does
not speak about forcible dispossession at all. In Ex.P23 dated 21.2.1979, Ex.P26 dated
30.1.1980 and Ex.P31 dated 9.3.1981, all referring to the subject “resumption of defence land
(suit property)”, plaintiff requests the defendants to take immediate steps to resolve the
question of compensation. These letters clearly show that the suit land was already resumed
by the defendants in terms of the lease and that plaintiff was seeking only compensation and
nothing more. In fact, the plaintiff specifically stated thus in Ex.P31 dated 9.3.1981 :
“I have already expressed that I have no objection for the resumption of the land in
question provided suitable compensation for the property created on the land is
paid to me.”
Again in Ex.P-34 dated 11.5.1981 and Ex.P-35 dated 16.11.1981, the plaintiff, with
reference to the subject of resumption of the suit land, requested that compensation be paid to
him at the earliest. Alternatively, he requested that resumption may be cancelled.
16. It is thus seen from 1975, when the plaintiff alleges that he was forcibly
dispossessed from the suit property, till 1981 there is no whisper in any of the letters written
by the plaintiff (either personally or through counsel) about any forcible dispossession
in September, 1975. On the other hand, all the letters specifically refer to resumption of the
land by defendants and seek only compensation. It can be inferred from these letters that the
suit property had been resumed long prior to September, 1975 in accordance with the terms
of the lease deed, that from about 1976-1977, plaintiff attempted to get some compensation
for the structures, that as the records did not show any authorized structures, the defence
department sought documents and clarifications and plaintiff furnished some documents to
claim compensation. Having failed in his claim for compensation and being tempted by the
steady rise in property values in the area, the plaintiff has apparently put forth a case of
forcible dispossession in September, 1975.
17. Significantly, in the notice dated 8.5.1984 (Exhibit P-40) sent through counsel
under Section 80, CPC, the plaintiff for the first time alleged that in the year 1975 the
military authorities unauthorizedly and illegally and forcibly dispossessed him from the
property. The month or date of alleged dispossession is not mentioned. The subsequent
notice dated 13.4.1987 (Exhibit P.42) makes an improvement as it is alleged therein that the
forcible dispossession was in the year September, 1975. This was reiterated in the plaint.
But the detailed correspondence consisting of several letters and representations by plaintiff
from 1976 to 1981 do not refer to forcible dispossession but, on the other hand, refers to
resumption of possession by the Defence Department in terms of the lease and to the claim of
plaintiff for payment of compensation for the structures. It is, therefore, clear that the case of
plaintiff that he was forcibly dispossessed from the suit land in September, 1975 is an
afterthought to grab defence land. As plaintiff has failed to prove forcible dispossession and
the documents disclose that the land was resumed in terms of the lease dated 30.9.1921
without any protest from the plaintiff, he is not entitled to the relief of possession, even if
such dispossession was within twelve years before the date of suit. Apart from merits, the
claim for possession is also clearly barred by limitation as the suit was filed on
21.8.1987 and plaintiff was lawfully dispossessed several years prior to 1975.
18. If at all there is any dispute or issue was pending, that was relating to the claim for
compensation and plaintiff had to seek arbitration in that behalf by establishing that
structures were lawfully put up with the permission of the lessor and the nature and extent
of such structures. But no such request was made for arbitration. No such relief is claimed in
the plaint. At all events by 1987, there was no surviving claim for compensation and no
request could even be made for reference to arbitration. The plaintiff-appellant is not
therefore entitled to any relief Conclusion.
19. Though the judgment of the High Court may be erroneous in regard to certain
issues of fact, we find that the final decision of the High Court to dismiss the suit was correct
and just and does not call for interference. We, therefore, affirm the decision of the High
Court dismissing the suit.
20.The appeal is, accordingly, dismissed. Parties to bear their respective costs.
Appeal dismissed.

[2007 (2) TNCJ 295 (SC)]

SUPREME COURT
BEFORE:
DR. ARIJIT PASAYAT AND LOKESHWAR SINGH PANTA, JJ.
ZAMINDER DHARMIK AND SHEKSHNIK NYAS ....Appellant
Versus
SIDDHNATH (DEAD) BY LRS. ...Respondent
[Civil Appeal No. 5835 of 2000, decided on 22 May, 2007]
nd

Code of Civil Procedure, 1908—Order XI, Rule 21—M.P. Land Revenue Code—
Section 57—Appeal—Question of law—Held, questions (i), (iii) and (vi) are prima
facie substantial question of law—Which need to be adjudicated—Matter remitted to
High Court for hearing on above questions. (Paras 1, 6 and 30)
JUDGMENT
DR. ARIJIT PASAYAT, J.—Challenge in this appeal is to the order passed by a learned
Single Judge of the Madhya Pradesh High Court dismissing the civil appeal filed by the
appellant under Section 100 of the Code of Civil Procedure, 1908 (in short the ‘CPC’ ). The
appeal was dismissed summarily at the admission stage holding that no substantial question
of law is involved.
2. Learned counsel for the appellant submitted that several questions of law are
involved.
3. Learned counsel for the respondent on the other hand submitted that there is no
substantial question of law involved.
4. Background facts in a nutshell as projected by appellant are as follows:
5. The present case relates to a land measuring 3.23 acres belonging to the ancestors
of Rao NihaI Karan Jamindara Bada Ravala of Indore and later on was a part of a religious
and educational trust. The appellants are its trustees. The land in dispute is an
important place where the appellant trust is carrying out annual Dussehra Puja even prior to
independence. The Zamindar family used to perform puja from generation to generation.
There was no dispute whatsoever raised about the said land upto 1969. The respondent was
merely a vegetable seller who used to collect vegetables and fruits from the land on
contract from the trust.
6. In 1969, Government issued a notice for ejectment under Section 248 of the M.P.
Land Revenue Code (in short ‘the Code’) claiming the land to be a land of the Government
and the appellant was dispossessed.
7. The Panchnama dated 12.6.1975 shows that the land in dispute was handed over to
the Government by none else than the father of the respondents herein i.e. the original
plaintiff Siddhanath.
8. An application for adjudication of right and title of the appellant was made before
the Sub-Divisional Officer, Indore, who was a competent authority under Section 57 of the
Code.
9. Section 57 of the M.P. Land Revenue Code reads as under:
“57. State ownership in all lands.—(1) All lands belong to the State Government
and it is hereby declared that all such lands, including standing and flowing water,
mines, quarries, minerals and forests reserved or not, and all right in the sub-
soil of any land are the property of the State Government:
Provided that nothing in this section shall, save as otherwise provided in this Code,
be deemed to affect any rights of any person subsisting at the time of coming into
force of this Code in any such property.
(2) Where a dispute arises between the State Government and any person in respect
of any right under sub-section (1) such dispute shall he decided by the Sub-
divisional Officer.
(3) Any person aggrieved by any order passed under sub-section (2) may
institute a civil suit to Contest the validity of the order within a period of one
year from the date of such order.
(3-A) (a) Notwithstanding anything contained in the Code of Civil Procedure, 1908
(V of 1908) no Civil Court shall, in a civil suit instituted under sub-section (3) on
or after 24th October, 1983, by order of temporary injunction disturb the person to
whom possession is restored under Section 250 if such person furnishes a reliable
surety to recompensate the aggrieved party against any loss in case the Civil Court
grants a decree in favour of the aggrieved :
Provided that no surety shall he required to be furnished by a member of a tribe
declared to be an aboriginal tribe under sub-section (6) of Section165;
(b) Where a Civil Court by an order of temporary injunction disturbed the person
referred to in clause (a) on or after 24th October, 1983 but before the publication of
Revenue Department’s Notification No.1-70-VII-N-2-83, dated 4th January, 1984
such order shall abate on such publication and the Tehsildar shall restore
possession to a person who is disturbed by such order.
(4) Where a civil suit has been instituted under sub-section (3) against any order,
such order shall not be subject to appeals or revision.”
10.The Sub-divisional Officer decided the title and declared the appellant as
Bhumiswami of the land in dispute and also held that the land was being used for
Dussehra Puja by the appellant.
11.In pursuance of the application for restoration of possession in view of the aforesaid
order dated 19.9.1974, the Tehsildar ordered restoration of possession to the appellant. In
pursuance of the said order of the Tehsildar, the Patwari went to the spot and made a report
that the place was in possession of the plaintiff/respondent’s father Shri Siddhanath. The
appellant, therefore, applied for an order before the Tehsildar. The Tehsildar on the one
hand passed an order seeking clarification from the Board of Revenue about the area of the
land and at the same time served a copy of the appellant’s application to Sri Siddhanath,
father of the Respondent.
12. Siddhanath filed an appeal challenging the order dated 19.9.1974 which was
dismissed.
13. Aggrieved by the order of the Collector, Siddhnath, father of the respondent filed a
revision before the Commissioner (Land Revenue) which was also dismissed on the ground
of limitation.
14. Aggrieved by the order of the Commissioner, Siddhanath, father of respondent
filed revision before the Board of Revenue.
15. The Board of Revenue, vide it order dated 26.8.1982 also dismissed the said
revision filed by the father of the respondent.
16. Siddhnath, father of the respondent, in the meanwhile filed a civil suit
No.259A/1981 for declaration of title and for injunction against the appellant and Rao Nihal
Karan much after the expiry of one year from the date of order of Sub-Divisional officer
dated 19.9.1974. The suit was thus barred under Section 57(3) of the M.P. Land Revenue
Act, 1959 (in short the ‘Act’). However, in the said suit the appellant filed an application for
discovery of documents. The father of the respondent did not file the said documents and the
said suit was dismissed on 17.8.1983 under Order X1, Rule 21, CPC. Order XI, Rule 21,
CPC reads as under:
“Order XI. discovery and Inspection .
Rule 21. No-compliance with order for discovery.—(1) Where any party fails to
comply with any order to answer interrogatories, or for discovery or inspection of
documents, he shall, if a plaintiff, be liable to have his suit dismissed for want of
prosecution, and, if a defendant, to have his defence, if any, struck out, and to be
placed in the same position as if he had not defended, and the party interrogating or
seeking discovery or inspection may apply to the Court for an order to that effect
and an order may be made on such application accordingly, after notice to the
parties and after giving them a reasonable opportunity of being heard.
(2) Where an order is made under sub-rule (1) dismissing any suit, the plaintiff
shall be precluded from bringing a fresh suit on the same cause of action.”
17. No further appeal or revision or any other proceedings against the said order were
opted and thus this decision became final under Section 57 of the Act.
18. Siddhnath, father of the respondent, not deterred by previous orders, filed
present suit without making the appellant or Rao Nihal Karan as a party to the said suit. In
the said suit Siddhnath claimed adverse possession against the State of M.P. as will be
evident from para 8 of the plaint. Respondent concealed the institution of his previous suit
dated 21.12.1981 as well as the order of its dismissal dated 17.8.1983.
19. Appellant herein who was not made a party, applied for being made a party which
was allowed and the appellant was arrayed as defendant No.3.
20. The State authorities in collusion with the respondent filed written statement and
admitted that the respondent was in possession since 1950.
 21. As the appellant is a religious and charitable trust, the trustees could not collect
the relevant documents of the ancestors of Zamindara Bada Ravala nor could timely lead the
evidence. However, the appellant filed some documents and memo of appeal presented
by Siddhnath which was allowed to be taken on record.
22.Thereafter the appellant filed an application under Order XIII, Rule 10 for proving
the Memo of Appeals filed against the order dated 19.9.1974 in which the respondent
specifically took the plea that he was in possession on behalf of the appellant.
23. The trial Court rejected the said application.
24. The appellant also filed an application under Order VI, Rule 17 for amendment of
the written statement for inserting very important facts including the fact that the
dismissal order dated 17.8.83 of the previous suit make the present suit as not maintainable.
The same was also rejected.
25. The trial Court vide judgment and order decreed the said suit on 31.1.1997.
26. Aggrieved by the judgment of the trial Court, the appellant herein filed first appeal
before the Additional District Judge, being First Appeal No.3 of 1997.
27. The IIIrd Additional District Judge, Indore vide its order dismissed the
first appeal on 30.1 1999.
28. Second appeal was filed which as noted above was dismissed.
29. In the memorandum of appeal following questions were formulated by the
appellant:
(i) Whether the learned Courts below have not erred in decreeing plaintiff-
respondent’s suit?
(ii) Whether the plaintiff’s claim could be decreed without there being any challenge to
the decision of the Revenue Authorities for restoration of possession to the
appellant?
(iii) Whether the learned Courts below are right in accepting the plaintiff’s claim of
possession in his own right or adverse possession?
(iv) Whether the learned First Appellate Court was right in rejecting the applications,
I.A. 5 and I.A. 6?
(v) Whether the decisions are rendered by wrongly placing burden of proof on the
appellant?
(vi) Whether the suit of the plaintiff was maintainable in view of the dismissal under
Order XI Rule 21 of his earlier Suit No. 359/81?
30. In our considered view the questions (ii), (iii) and (vi) are prima facie substantial
questions of law which need to be adjudicated. Accordingly we set aside the order of
the High Court and remit the matter to it for hearing the second appeal on the questions
(ii), (iii) and (vi) as quoted above. We make it clear that though prima facie there appears to
be substantial questions of law, the High Court shall be free to decide the matter in
accordance with law.
31. Appeal is allowed without any orders as to costs.
Appeal allowed.
 [2007 (2) TNCJ 301 (SC)]
SUPREME COURT
BEFORE:
MARKANDEY KATJU, J.
STATE OF U.P. AND OTHERS ...Appellant
Versus
JEET S. BISHT AND ANOTHER ...Respondents
[Civil Appeal No. 2740 of 2007, (Arising out of SLP (Civil) No. 6928 of 1999), decided on
18th May, 2007]
Consumer Protection Act, 1986—Sections 16 and 10 (3)—W.P. for charging
excessive electricity bills by U.P. Electricity Board—Consumer Forum—Constitution of
and salaries to Judges and other staff of such fora—Court can only make
recommendation—But it cannot give binding directions—Request made to Central
Government to consider fixing salaries and allowances to members of consumer fora.
(Paras 4, 6, 14 and 58)
No doubt the Court can make a recommendation to the State Governments that the
salaries and allowances of the members of the State and District Fora are inadequate and
should be increased, but that is about as far as the Court can go. It can only make
recommendations but it cannot give binding directions in this connection. By a judicial
verdict the Court cannot amend the law made by Parliament or the State Legislature.
In the present case there are clear statutory provisions in Sections 10 (3) and 16 (2)
of the Consumer Protection Act which prescribe that it is the State Government which alone
can fix the salaries and allowances and conditions of service of the members of the State and
District Consumer Fora. (Paras 14 and 24)
Important Point
It is well settled that a mere direction of the Supreme Court without laying down any
principle of law is not a precedent. It is only where the Supreme Court lays down a principle
of law that it will amount to a precedent.
Case law.—1993 (4) SCC 288; (1989) 1 SCC 101; (1991)4 SCC 139; (2000) 5 SCC
488; (2001) 3 SCC 537; (2003)7 SCC 197; (2004)11 SCC 26; 1992 Supp. (3) SCC 191; AIR
1957 SC 1087; 1996 (6) SCC 172; AIR 2002 SC 3088; AIR 1994 SC 1808; AIR 2002 SC
2112; AIR 1990 SC 334; AIR 2003 SC 2612; 2004 ALJ 239; JT 2006 (2) SC 361; AIR 2006
SC 767; AIR 1992 SC 96; JT 2004 Supp(1) SC 326; AIR 1889 SC 1899; AIR 1952 SC 192;
2004 (8) SCC 286; 1991 (3) SCC 239; 1985 (2) SCC 131; 1959 SCR 629; 198 U.S. 45
(1905); 381 U.S. 479; 1959 SCR 629.
JUDGMENT
MARKANDEY KATJU, J.—Leave granted.
2. This appeal furnishes a typical instance of a widespread malady which has infected
the judicial system in India, namely, the tendency in some Courts of not exercising judicial
restraint and crossing their limits by encroaching into the legislative or executive domain,
contrary to the broad separation of powers envisaged under our Constitution.
3. Heard learned counsel for the parties as well as Shri Amarendra Sharan, learned
Additional Solicitor General and Shri M.N. Krishnamani, Sr. Advocate.
 4. This appeal arises out of a writ petition filed in the Allahabad High Court in which
the grievance of the writ petitioner was of charging excessive electricity bills by the U.P.
State Electricity Board. In para 19 of the writ petition it was also mentioned that the
petitioner had, before filing the writ petition, approached the District Consumer Forum,
Chamoli but the same was not decided because the term of two members of the District
Consumer Forum had expired and till the filing of the petition new members were not
appointed and hence the District Consumer Forum, Chamoli was not working.
5. In the counter affidavit to the writ petition it was stated by the Special Secretary,
Department of Food and Civil Supplies, U.P. Government, that appropriate steps were being
taken to fill up the vacancies of the District Consumer Forum, Chamoli vide paragraphs 4 to
12 of the counter affidavit. In the said counter affidavit mention was also made about the
grants given by the State Government for the State Consumer Forum and also mentioned the
statistics about the number of cases filed and disposed off.
6. By the impugned judgment dated 8.1.1998 the High Court apart from making
observations on the merits of the controversy issued the following directions :
“We direct the State Government to constitute at least five State Consumer Forums
at State level as used under Section 16 of Consumer Protection Act by making
necessary amendment. The State Government can also make law by making local
amendment with the prior consent of the President of India under Article 254
of Constitution of India if it falls under concurrent list and the Benches can be
constituted at “Commissionery level” at the beginning with at five places on the
pattern of Benches constituted under Administrative Tribunal Act. We further
direct that the Presiding Officer of a Bench will be a retired High Court Judge who
would enjoy the same facilities and amenities as enjoyed by a sitting High Court
Judge as in Vice-Chairman of Administrative Tribunal. At present the President of
State Commission is not enjoying the facilities of a Judge of High Court. We are
also of the view that the infrastructure facilities of proper building and
recruitment powers of staff be given to the Presiding Officer of State Commission
or Vice-President and be given proper budgetary power to regulate the budget
within the allocated sufficient budget so that he has not to run to the administrative
department off and on.
We make it clear that in case if it does not fall within the jurisdiction of State
Government to issue ordinance by local amendment or enact law then the State
Government is to approach immediately in view of the above discussion to the
Central Government for making necessary infrastructure facilities regarding
constitution of Benches and proper staff, building etc. so that the functioning starts
within four months to mitigate the suffering of the consumers.”
7. Against the aforesaid judgment of the High Court the State of U.P. and others filed
this appeal before us in which a ground inter alia taken was that the aforesaid directions
issued by the High Court were contrary to the provisions of the Consumer Protection Act. It
was also urged that the Court cannot issue a direction that the law be amended. It was further
contended that the various directions of the High Court related to policy matters in which the
judiciary cannot interfere.
8. When the appeal was taken up for hearing on the earlier occasions this Court passed
interim orders expressing its anguish that the very purpose of the Consumer Protection Act
was frustrated and the Act was becoming non-functional due to the indifference of the State
Government in filling up vacancies at the State and District Levels and providing in
sufficient funds for salaries of members and the staff, and for the infrastructure without
which the State and District Consumer Fora cannot operate. By the order dated 8.1.2001 this
Court requested the Solicitor General of India to assist the Court and seek instructions.
Thereafter, on 16.4.2001 the learned Solicitor General submitted that he had discussed the
matter with the Chairman of the National Consumer Forum with a view to find out the
difficulties being faced by the various Fora created at the National level, State level and
District level so that effective steps can be taken to make these Fora functional and the object
of the Act achieved.
9. Thereafter by an interim order dated 26.11.2001 this Court observed:
“After hearing learned counsel for the parties we direct the Union of India to file,
within two weeks from today, a comprehensive scheme with regard to the
structuring of Consumer Forums at all the three levels. The emphasis has to be
with regard to service conditions, not only of the members of the District, State and
the National Consumer Forums but also with regard to the staff in each of the said
Forums. In formulating the scheme, the report of the Bagla Commission may be
taken into consideration.
On the scheme being filed in Court, notices will then be issue to all the State
Governments for their comments. The effort has to be to see that these Consumer
Forums become effective institutions where the consumers can give vent to their
grievances rather then their going to the Courts of law.
List for further orders on 11th December, 2001.”
10. Thereafter it appears that a series of interim orders have been passed by this Court
(including issuance of notices to all State Governments) relating to various matters
concerning the Consumer Fora at the National, State and District level. It appears that the
scope of the writ petition in the appeal before us has been expanded so as to cover not only
the State and District Consumer Fora in U.P., but also of those all over India. Thus the initial
controversy relating to the District Forum, Chamoli was expanded by the Allahabad High
Court to the State level, and further expanded by this Court to the National level.
11. It was contended before us by Shri Amarendra Sharan, Additional Solicitor
General of India that this Court should fix the salaries and allowances of members of the
State Consumer Dispute Redressal Commission in all States of India as well as the salaries
and allowances of the District Fora all over India.
12. We pointed out to learned Additional Solicitor General that this cannot be validly
done as it would be contrary to the provisions of the Act. Thus, Section 10(3) of the
Consumer Protection Act states:
“The salary or honorarium and other allowance payable to, and the other terms and
conditions of service of the members of the District Forum shall be such as
may be prescribed by the State Government.”
Similarly, Section 16(2) of the Act states:
“The salary or honorarium and other allowances payable to, and the other terms
and conditions of service (including tenure of office) of, the members of the State
Commission shall be such as may be prescribed by the State
Government.”
13. We pointed out to the learned Additional Solicitor General of India that the salaries
and allowances of the members of the State Commissions as well as the District Consumer
Fora can only be prescribed by the State Government and not by this Court. When
Parliament in its wisdom has nominated a particular authority (in this case the State
Government) to fix the salaries and allowances of the members of the State and District Fora,
this Court cannot override the clear language of the statute and substitute the words “the
Supreme Court” for the words “the State Government” under Section 10(3) and Section
16(2). It is a well settled principle of interpretation that the Court cannot add or substitute
words in a statute.
14. No doubt the Court can make a recommendation to the State Governments that the
salaries and allowances of the members of the State and District Fora are inadequate and
should be increased, but that is about as far as the Court can go. It can only make
recommendations but it cannot give binding directions in this connection. By a judicial
verdict the Court cannot amend the law made by Parliament or the State Legislature.
15. Learned Additional Solicitor General submitted that such a direction can be given,
and for this proposition he relied on the decision of this Court in All India Judges’
Association and Ors. v. Union of India & Ors., 1993(4) SCC 288.
16. We have carefully gone through the above decision. We fully agree with the
observations in this judgment that Judges should get adequate salaries and allowances to
enable them to function impartially and with a free mind, but we do not agree that that
decision has laid down any principle of law that the salaries, allowances and other
conditions of Judges should be fixed by the judiciary.
17. The salaries, allowances and other conditions of service of Judges are either fixed
by the Constitution (e.g. the age of superannuation and salaries of Supreme Court and High
Court Judges) or by the legislature or the executive. In fact this is the position all over the
world.
18. No doubt in the aforesaid decision various direction have been given by this Court
but in our opinion that was done without any discussion as to whether such directions can
validly be given by the Court at all. The decision, therefore, passed sub silentio . The
meaning of a judgment sub silentio has been explained by this Court in Municipal
Corporation of Delhi v. Gurnam Kaur, (1989) 1 SCC 101 (vide paras 11 and 12) as follows :-
“A decision passes sub silentio, in the technical sense that has come to be attached
to that phrase, when the particular point of law involved in the decision is not
perceived by the Court or present to its mind. The Court may consciously decide
in favour of one party because of point A, which it considers and pronounces upon.
It may be shown, however, that logically the Court should not have decided in
favour of the particular party unless it also decided point B in his favour; but point
B was not argued or considered by the Court. In such circumstances, although
point B was logically involved in the facts and although the case had a
specific outcome, the decision is not an authority on point B. Point B is said to
pass sub silentio.
In General v. Worth of Paris Ltd. (k) (1936) 2 All ER 905 (CA), the only point
argued was on the question of priority of the claimant’s debt, and, on this argument
being heard, the Court granted the order. No consideration was given to the
question whether a garnishee order could properly be made on an account standing
in the name of the liquidator. When, therefore, this very point was argued in a
subsequent case before the Court of Appeal in Lancaster Motor Co. (London)
Ltd. v. Bremith Ltd.,. (1941) 1 KB 675, the Court held itself not bound by its
previous decision. Sir Wilfrid Greene, M.R., said that he could not help thinking
 that the point now raised had been deliberately passed sub silentio by counsel in
order that the point of substance might be decided. He went on to say that the
point had to be decided by the earlier Court before it could make the order which it
did; nevertheless, since it was decided “without argument, without reference to the
crucial words of the rule, and without any citation of authority”, it was not
binding and would not be followed. Precedents sub silentio and without argument
are of no moment. This rule has ever since been followed.”
19. The principle of sub silentio has been thereafter followed by this Court in State of
U.P. & Anr. v. Synthetics & Chemicals Ltd. & Anr., (1991) 4 SCC 139, Arnit Das v. State of
Bihar (2000) 5 SCC 488, A-One Granites v. State of U.P. & Ors. (2001) 3 SCC 537,
Divisional Controller, KSRTC v. Mahadeva Shetty & Anr., (2003) 7 SCC 197 and State of
Punjab & Anr. v. Devans Modern Breweries Ltd. & Anr., (2004) 11 SCC 26.
20. The direction to increase the age of superannuation is really the function of the
Legislature or executive. It has been held in several decisions of this Court that the Court
cannot fix the age of superannuation e.g., T.P. George v. State of Kerala, 1992 Supp. (3)
SCC 191 (vide para 6).
21. It is well-settled that a mere direction of the Supreme Court without laying down
any principle of law is not a precedent. It is only where the Supreme Court lays down a
principle of law that it will amount to a precedent.
22. In Municipal Committee, Amritsar v. Hazara Singh, AIR 1975 SC 1087, the
Supreme Court observed that only a statement of law in a decision is binding. In State of
Punjab v. Baldev Singh, 1999 (6) SCC 172, this Court observed that everything in a decision
is not a precedent. In Delhi Administration v. Manoharlal, AIR 2002 SC 3088, the Supreme
Court observed that a mere direction without laying down any principle of law is not a
precedent. In Divisional Controller, KSRTC v. Mahadeva Shetty, 2003 (7) SCC 197, this
Court observed as follows:
“The decision ordinarily is a decision on the case before the Court, while the
principle underlying the decision would be binding as a precedent in a case which
comes up for decision subsequently.The scope and authority of a
precedent should never be expanded unnecessarily beyond the needs of a given
situation. The only thing binding as an authority upon a subsequent Judge is the
principle, upon which the case was decided”
23. In Jammu & Kashmir Public Service Commission v. Dr. Narinder Mohan, AIR
1994 SC 1808, this Court held that the directions issued by the Court from time to time
for regularization of ad hoc appointments are not a ratio of this decision, rather the
aforesaid directions were to be treated under Article 142 of the Constitution of India. This
Court ultimately held that the High Court was not right in placing reliance on the judgment as
a ratio to give the direction to the Public Service Commission to consider the cases of the
respondents for regularization. In that decision this Court observed:
“11. This Court in Dr. A.K. Jain v. Union of India, 1988 (1) SCR 335, gave
directions under Article 142 to regularize the services of the ad hoc doctors
appointed on or before October 1, 1984. It is a direction under Article 142 on the
particular facts and circumstances therein. Therefore, the High Court is not right in
placing reliance on the judgment as a ratio to give the direction to the PSC to
consider the cases of the respondents. Article 142 power is confided only to this
 Court. The ratio in Dr. P.C.C Rawani v. Union of India, 1992 (1) SCC 331, is also
not an authority under Article 141.”
24. In the present case there are clear statutory provisions in Sections 10(3) and 16(2)
of the Consumer Protection Act which prescribe that it is the State Government which
alone can fix the salaries and allowances and conditions of service of the members of the
State and District Consumer Fora. How then can the Court fix them?
25. If this Court itself fixes such salaries and allowances, it will be really amending the
law, and it is well settled that the Court cannot amend the law vide Union of India v.
Association for Democratic Reforms & Anr., AIR 2002 SC 2112 and Supreme Court
Employees Welfare Association v. Union of India & Ors., AIR 1990 SC 334.
26. This Court cannot direct legislation vide Union of India v. Prakash P. Hinduja,
AIR 2003 SC 2612 (vide para 29) and it cannot legislate vide Sanjay Kumar v. State of
U.P., 2004 ALJ 239; JT 2006(2) SC 361; Suresh Seth v. Indore Municipal Corporation,
AIR 2006 SC 767 (vide para 5) and Union of India & Anr. v. Deoki Nandan Aggarwal, AIR
1992 SC 96.
27. The Court should not encroach into the sphere of the other organs of the State vide
N.K. Prasada v. Government of India & Ors., JT 2004 Supp.(1) SC 326 (vide paras 27 and
28).
28. Thus in Supreme Court Employees Welfare Association v. Union of India & Ors.,
AIR 1990 SC 334 (vide para 55) this Court observed :
“There can be no doubt that an authority exercising legislative function cannot
be directed to do a particular act. Similarly the President of India cannot be
directed by the Court to grant approval to the proposals made by the Registrar
General of the Supreme Court, presumably on the direction of the Chief Justice of
India.”
29. In Union of India v. Association for Democratic Reforms & Anr., AIR 2002 SC
2112 (vide para 21) this Court observed :
“At the outset, we would say that it is not possible for this Court to give any
directions for amending the Act or the statutory rules. It is for Parliament to amend
the Act and Rules. It is also established law that no direction can be given, which
would be contrary to the Act and the Rules.”
30. If we issue the direction as prayed for by learned Additional Solicitor General in
this case, we would be issuing a direction which would be wholly illegal being contrary to
Section 10(3) and Section 16(2) of the Consumer Protection Act. This Court is subordinate
to the law and not above the law.
31. When it is said “Be you howsoever so high, the law is above you” this dictum
applies even to the Supreme Court, since the law is above the Supreme Court and the
Supreme Court is not above the law. The Judges of the Supreme Court and High Court
should have the modesty and humility to realize this.
32. In Union of India v. Prakash P. Hinduja, AIR 2003 SC 2612 (vide para 29) this
Court observed :
“Under our constitutional scheme the Parliament exercises sovereign power to
enact laws and no outside power or authority can issue a direction to enact a
particular piece of legislation. In Supreme Court Employees’ Welfare Association
v. Union of India, (1989) 4 SCC 187 (para 51) it has been held that no Court can
direct a legislature to enact a particular law. Similarly, when an executive
 authority exercises a legislative power by way of subordinate legislation
pursuant to the delegated authority of a Legislature, such executive authority
cannot be asked to enact a law which he has been empowered to do under the
delegated legislative authority. This view has been reiterated in State of J&K v.
AR Zakki and others, AIR 1992 SC 1546.”
33. In Union of India & Anr. v. Deoki Nandan Aggarwal, AIR 1992 SC 96 (vide para
14) this Court observed :
“It is not the duty of the Court either to enlarge the scope of the legislation or the
intention of the legislature when the language of the provision is plain and
unambiguous. The Court cannot rewrite, recast or reframe the legislation for the
very good reason that it has no power to legislate. The power to legislate has not
been conferred on the Courts. The Court cannot add words to a statute or read
words into it which are not there. Assuming there is a defect or an omission in
the words used by the Legislature the Court could not go to its aid to correct or
make up the deficiency. Courts should decide what the law is and not what it
should be. The Court of course adopts a construction which will carry out the
obvious intention of the Legislature, but it could not legislate itself. To invoke
judicial activism to set at naught the legislative will is subversive of the
constitutional harmony and comity of instrumentalities vide P.K. Unni v. Nirmala
Industries, (1990) 1 SCR 482 at p.488: AIR 1990 SCC 933 at p.936, Mangilal v.
Sugamchand Rathi (1965) 5 SCR 239: AIR 1965 SC 101, Sri Ram Ram Narain
Medhi v. The State of Bombay, 1959 Supp. (1) SCR 489: AIR 1959 SC 459, Smt.
Hira Devi v. District Board, Shahjahanpur, 1952 SCR 1122 at p. 1131: AIR 1952
SC 362 at p.365, Nalinakhya Bysack v. Shyam Sunder Haldar 1953 SCR 533 at
p.545: AIR 1953 SC 148 at p.152, Gujarat Steel Tubes Ltd. v. Gujarat Steel
Mazdoor Sabha, (1980) 2 SCR 146: AIR 1980 SC 1896, S. Narayanaswami v.G.
Punnerselvam, (1973) 1 SCR 172 at p.182: AIR 1972 SC 2284 at p.2289, N.S.
Vardachari v. G. Vasantha Pai, (1973) 1 SCR 886): AIR 1973 SC 38, Union of
India v. Sankal Chand Himatlal Sheth, (1978) 1 SCR 423: AIR 1977 SC 2328 and
Commr. of Sales Tax, U.P. v. Auriaya Chamber of Commerce, Allahabad, (1986) 2
SCR 430 at p.438: AIR 1986 SC 1556 at pp.1559-60. Modifying and altering the
scheme and applying it to others who are not otherwise entitled to under the
scheme will not also come under the principle of affirmative action adopted by
Courts sometimes in order to avoid discrimination. If we may say so, what the
High Court has done in this case is a clear and naked usurpation of legislative
power.”
34. Thus the above decision clearly lays down that in the garb of affirmative action or
judicial activism this Court cannot amend the law as that would be a naked usurpation of
legislative power. This Court must exercise judicial restraint in this connection.
35. We regret to say that the directions of the High Court (which have been quoted in
this judgment) are really an encroachment into the legislative and executive domain.
Whether there should be one State Consumer Forum or five or more State Consumer Fora is
entirely for the legislature and executive to decide. The High Court has directed that the
State Government should constitute at least five State Consumer Forums at the State level by
making necessary amendments in the Act. In our opinion such a direction was clearly illegal.
The Court (including this Court) cannot direct amendment of an Act made by the legislature.
The establishment of the District, State and National level Consumer Fora is done under
Section 9 of the Consumer Protection Act by the authorities mentioned in that Act. The
composition of these Fora is also prescribed in that section, and so are the salaries and
allowances and other conditions of service of the members. It is only the authorities
mentioned in the Act who can do the needful in this connection, and this Court cannot
arrogate to itself the powers given by the Act to the said authorities.
36. For instance, the salaries and allowances of member of the State and District Fora
can only be prescribed by the State Government. We have been informed that in some States
these salaries and allowances are very low. Be that as it may, this Court cannot arrogate
to itself the powers and functions of State Government in this connection. Different State
Governments have different constraints and considerations e.g. financial constraints, the
number of cases, etc. and it is entirely for the State Governments to exercise the powers
prescribed to them by the Act. Similarly it is entirely for the Central Government to perform
the functions given to it by the Act, and this Court cannot interfere with the Central or State
Government in the exercise of their functions. At best this Court or the High Court can make
recommendations for increase of salaries, allowances and betterment of working conditions,
etc. but there its jurisdiction ends. It cannot give binding directions in this connection.
37. We regret to say that even the interim order of this Court dated 26.11.2000 by
which it directed the Union of India to file a comprehensive scheme with regard to the
structuring of the Consumer Forums at all the three levels does not seem to be within its
jurisdiction as it is contrary to the clear provisions of the Consumer Protection Act.
38. It has been nowhere provided in the Consumer Protection Act that the Central
Government has a duty, or power, to prepare a comprehensive scheme with regard to the
structure of Consumer Fora at all the three levels.
39. No doubt the High Court, as well as this Court, are concerned that the
Consumer Fora in many parts of the country are not functioning properly, but the Court could
at most have given some recommendations to the Central and State Government in this
connection, and it is entirely upto the Central and State Governments whether to accept those
recommendations or not, at their discretion. This Court cannot amend the Consumer
Protection Act by issuing directions contrary to the clear provisions of the Act nor can the
High Court do so.
40. The High Court apart from directing that there should be five Consumer Fora in
U.P. has also directed that the Presiding Officer of a Bench will be a retired High Court
Judge who would enjoy the same facilities and amenities as enjoyed by a sitting High Court
Judge. This again is contrary to the provisions of the Act. Section 16(2) of the Act (which
we have quoted above) clearly states that the salaries, allowances and conditions of service of
the members of the State Commission shall be such as may be prescribed by the State
Government. Hence, it was not open to the High Court to practically amend Section 16(2) by
its judicial verdict and prescribe the salaries or conditions of service of the members of the
State Commission. Such salaries or conditions of service can only be prescribed by the State
Government and not by the High Court as is clear from Section 16(2).
41.We are constrained to make these strong observations because in recent years it
has been noticed that the judiciary has not been exercising self restraint and has been very
frequently encroaching into the legislative or executive domain. We should do
introspection and self criticism in this connection.
42. It is true that there is no rigid separation of powers under our Constitution but there
is broad separation of powers, and it not proper for one organ of the State to encroach into the
domain of others.
 43. In this connection, this Court in Asif Hameed & Ors. v. State of Jammu and
Kashmir & Ors., AIR 1989 SC 1899 observed (vide para 17 to 19) :
“Before adverting to the controversy directly involved in these appeals we may
have a fresh look on the inter se functioning of the three organs of democracy
under our Constitution. Although the doctrine of separation of powers has not
been recognized under the Constitution in its absolute rigidity but the constitution
makers have meticulously defined the functions of various organs of the State.
The Legislature, executive and judiciary have to function within their own
spheres demarcated under the Constitution. No organ can usurp the functions
assigned to another. The Constitution trusts to the judgment of these organs to
function and exercise their discretion by strictly following the procedure prescribed
therein. The functioning of democracy depends upon the strength and
independence of each of its organs. The Legislature and executive, the two facets
of the people’s will, have all the powers including that of finance. The Judiciary
has no power over the sword or the purse, nonetheless it has power to ensure that
the aforesaid two main organs of the State function within the constitutional
limits. It is the sentinel of democracy. Judicial review is a powerful weapon to
restrain unconstitutional exercise of power by the Legislature and executive.
The expanding horizon of judicial review has taken in its fold the concept of
social and economic justice. While exercise of powers by the legislature
and executive is subject to judicial restraint, the only check on our own exercise of
powers is the self imposed discipline of judicial restraint.”
Frankfurter, J. of the U.S. Supreme Court dissenting in the controversial
expatriation case of Trop v. Dulles, (1958) 356 US 86, observed as under :—
“All power is, in Madison’s phrase, “on an encroaching nature”. Judicial power
is not immune against this human weakness. It also must be on guard against
encroaching beyond its proper bounds, and not the less so since the only restraint
upon it is self-restraint…..
Rigorous observance of the difference between limits of power and wise exercise
of power—between questions of authority and questions of prudence—requires the
most alert appreciation of this decisive but subtle relationship of two concepts
that too easily coalesce. No less does it require a disciplined will to adhere to the
difference. It is not easy to stand aloof and allow want of wisdom to prevail to
disregard one’s own strongly held view of what is wise in the conduct of affairs.
But it is not the business of this Court to pronounce policy. It must observe a
fastidious regard for limitations on its own power, and this precludes the Court’s
giving effect to its own notions of what is wise or politic. That self-restraint is of
the essence in the observance of the judicial oath, for the Constitution has not
authorized the judges to sit in judgment on the wisdom of what Congress and the
Executive Branch do.”
When a State action is challenged, the function of the Court is to examine the
action in accordance with law and to determine whether the legislature or the
executive has acted within the powers and functions assigned under the
constitution and if not, the Court must strike-down the action. While doing so
the court must remain within its self-imposed limits. The Court sits in judgment
on the action of a coordinate branch of the Government. While exercising
power of judicial review of administrative action, the Court is not an appellate
 authority. The constitution does not permit the Court to direct or advise the
executive in matters of policy or to sermonize qua any matter which under the
constitution lies within the sphere of legislature or executive, provided these
authorities do not transgress their constitutional limits or statutory powers.”
44. Courts have to maintain judicial self-restraint and they should not try to take over
the functions of the Executive or the Legislature. In the present case, we can understand
the concern of the High Court that the District Consumer Forum, Chamoli and other
Consumer Fora in U.P. were not functioning properly, but then it could not and should not
have overstepped its limits and taken over the functions of the authorities prescribed in
Section 9 and other provisions of the Act.
45. It is well settled that the High Court cannot takeover the function of the statutory
authorities under an Act, vide G. Veerappa Pillai, Proprietor, Sathi Vihar Bus Service
Porayar, Tanjore District, Madras v. Raman and Raman Ltd. Kumbakonam, Tanjore
District and others, AIR 1952 SC 192; State of U.P. v. Section Officer Brotherhood and
Anr., 2004 (8) SCC 286; U.P. State Road Transport Corporation and Anr. v. Mohd. Ismail
and others, 1991(3) SCC 239 (paragraph 12) and State of U.P. and Anr. v. Raja Ram Jaiswal
and Anr., 1985(2) SCC 131 (paragraph 16).
46. For instance, this Court in G. Veerappa Pillai’s case (supra) held that the High
Court cannot direct the Regional Transport Authority to grant a permit, because in that
event, the High Court itself will be acting as the permit granting authority. Similarly, in State
of U.P. and Anr. v. Raja Ram Jaiswal and Anr. (supra) this Court observed :
“The High Court was, of course, clearly in error in issuing a mandamus directing
the District Magistrate to grant a licence. Where a statute confers power and
casts a duty to perform any function before the power is exercised or the function
is performed, the Court cannot in exercise of writ jurisdiction supplant the
licensing authority and take upon itself the functions of the licensing authority.
The High Court was hearing a writ petition praying for a writ of certiorari for
quashing the order of remand. The High Court could have quashed the order of
remand if it was satisfied that the order suffers from an error apparent on the
record. But there its jurisdiction would come to an end. The High Court cannot
then proceed to take over the functions of the licensing authority and direct the
licensing authority by a mandamus to grant to licence.”
47. Under our Constitution the Judiciary, the Legislature and the Executive have their
own broad spheres of operation. It is important that these organs do not encroach on each
other’s proper spheres and confine themselves to their own, otherwise there will always be
danger of a reaction. Of the three organs of the State, it is only the judiciary which has the
right to determine the limits of jurisdiction of all these three organs. This great power
must, therefore, be exercised by the judiciary with the utmost humility and self-restraint.
48. The judiciary must therefore exercise self-restraint and eschew the temptation to
encroach into the domain of the Legislature or the administrative or statutory authorities. By
exercising self-restraint it will enhance its own respect and prestige. Of course, if a law
clearly violates some provision of the Constitution, it can be struck down, but otherwise it is
not for the Court to sit in appeal over the wisdom of the legislature, nor can it amend the law.
49. The Court may feel that the law needs to be amended or the Forum created by an
Act needs to be made more effective, but on this ground it cannot itself amend the law or take
over the functions of the Legislature or executive. The Legislature and the executive
authorities in their wisdom are free to choose different methods of solving a problem and the
Court cannot say that this or that method should have been adopted. As Mr. Justice Cardozo
of the U.S. Supreme Court observed in Anderson v. Wilson, 289 U.S. 20 :
“We do not pause to consider whether a statute differently conceived and framed
would yield results more consonant with fairness and reason.We take this statute as
we find it”.
50. Judicial restraint is consistent with and complementary to the balance of power
among the three independent branches of the State. It accomplishes this in two ways. First,
judicial restraint not only recognizes the equality of the other two branches with the
judiciary, it also fosters that equality by minimizing interbranch interference by the
judiciary. In this analysis, judicial restraint may also be called judicial respect, that is,
respect by the judiciary for the other coequal branches. In contrast, judicial activism’s
unpredictable results make the judiciary a moving target and thus decreases the ability to
maintain equality with the co-branches. Restraint stabilizes the judiciary so that it may
better function in a system of interbranch equality.
51. Second, judicial restraint tends to protect the independence of the judiciary. When
Courts encroach into the legislative or administrative fields almost inevitably voters,
legislators, and other elected officials will conclude that the activities of Judges should be
closely monitored. If Judges act like legislators or administrators it follows that Judges
should be elected like legislators or selected and trained like administrators. This would be
counterproductive. An essential feature of an independent judiciary is its removal from the
political or administrative process. Even if this removal has sometimes been less than
complete, it is an ideal worthy of support and one that has had valuable effects.
52. The constitutional trade-off for independence is that Judges must restrain
themselves from the areas reserved to the other separate branches. Thus, judicial restraint
complements the twin, overarching values of the independence of the judiciary and the
separation of powers.
53. As observed by the Supreme Court in M.H. Qureshi v. State of Bihar, 1959 SCR
629, the Court must presume that the Legislature understands and correctly appreciates the
need of its own people. The Legislature is free to recognize degrees of harm and may
confine its restrictions to those where the need is deemed to be the clearest. In the same
decision it was also observed that the Legislature is the best judge of what is good for the
community on whose suffrage it came into existence, and it is for the legislature to amend the
law, if it so wishes. The Court can at most make a recommendation to the Legislature in this
connection, but it is upto the Legislature to accept the recommendation or not.
54. The function of a Judge has been described thus by Lawton LJ :
“A Judge acts as a referee who can blow his judicial whistle when the ball goes
out of play, but when the game restarts he must neither take part in it nor tell the
players how to play” (vide Laker Airways Ltd. v. Department of Trade, (1977) QB
643(724).
55. In writing a biographical essay on the celebrated Justice Holmes of the U.S.
Supreme Court in the dictionary of American Biography, Justice Frankfurter wrote :
“It was not for him (Holmes) to prescribe for society or to deny it the right of
experimentation within very wide limits. That was to be left for contest by the
political forces in the state. The duty of the Court was to keep the ring free. He
reached the democratic result by the philosophic route of skepticism by his
 disbelief in ultimate answers to social questions. Thereby he exhibited the judicial
function at its purest.” (See `Essays on Legal History in Honour of Felix
Frankfurter’ Edited by Morris D. Forkosch).
56. In our opinion adjudication must be done within the system of historically
validated restraints and conscious minimization of the Judges preferences. The Court must
not embarrass the Legislature or the administrative authorities and must realize that the
legislature and authorities have to take into account various considerations, some of which
the Court may not even be aware of. In the words of Chief Justice Neely:
“I have very few illusions about my own limitations as a Judge. I am not an
accountant, electrical engineer, financer, banker, stockbroker or system
management analyst. It is the height of folly to expect Judges’ intelligently to
review a 5000 page record addressing the intricacies of a public utility operation.
It is not the function of a Judge to act as a super board, or with the zeal of a
pedantic school master substituting its judgment for that of the administrator.”
57. In Lochner v. New York, 198 US 45 (1905), Mr. Justice Holmes of the U.S.
Supreme Court in his dissenting judgment criticized the majority of the Court for
becoming a super Legislature by inventing a ‘liberty of contract’ theory, thereby enforcing its
particular laissez-faire economic philosophy. Similarly, in his dissenting judgment in
Griswold v. Connecticut, 381 U.S. 479, Mr. Justice Hugo Black warned that “unbounded
judicial creativity would make this Court a day-do-day Constitutional Convention”. In “The
Nature of the Judicial Process’ Justice Cardozo remarked : “The Judge is not a Knight errant,
roaming at will in pursuit of his own ideal of beauty and goodness”. Justice Frankfurter has
pointed out that great judges have constantly admonished their brethren of the need for
discipline in observing their limitations (See Frankfurter’s ‘Some Reflections on the Reading
of Statutes’).
58. However, the Central and State Governments are requested to consider fixing
adequate salaries and allowances for members of the Consumers Fora at all three levels, so
that they can function effectively and with a free mind. They are also requested to fill up
vacancies expeditiously so that the Fora can function effectively.

[2007 (2) TNCJ 319 (Mad)]

MADRAS HIGH COURT
BEFORE:
S. RAJESWARAN, J.
CHURCH OF SOUTH INDIA TRUST ASSOCIATION
TIRUCHIRAPALLI-THANJAVUR DIOCESAN COUNCIL
REP. BY-DIOCESAN TREASURER AND OTHERS ...Petitioners
Versus
KOVIL PILLAI AND OTHERS ...Respondents
[C.R.P. (PD) No. 256 of 2004, decided on 7th June, 2007.]
(A) Civil Procedure Code, 1908—Order VI, Rule 17—Amendment in plaint—
And alternative prayer in the prayer column— Refused—Legality of—Main prayer in
the suit is for a declaration to declare that the suit property belongs to the plaintiffs on
the basis of their uninterrupted possession—Amendment filed for an alternative prayer
for perfection of title by adverse possession and also a descriptive para to be added in
the plaint to such effect—Suit pending since 1990—Written Statement filed only in
December, 1998—Amendment could be ordered at any time at any stage of the
proceedings for the purpose of determining the real controversy between the parties—
Delay alone is not the criterion to reject the amendment—Alternative prayer and
addition of description not going to charge the nature of suit—Rather in consonance
with the pleading already made—Order refusing amendment set aside—Application for
amendment allowed subject to cost of Rs. 3,000/-.
(Paras 15 to 20)
(B) Civil Procedure Code, 1908—Order VI, Rule 17—Application under
principles governing. (Para 13)
Case law.—AIR 1997 Mad 368; 1997 (2) CTC 12; 2004 (2) MLJ 80; 2004 (2) MLJ
211; 2004 (2) MLJ 411; 2004 (2) MLJ 620.
Counsel.—M/s. F.X.A.F. Denny, for the petitioners; Mr. V. Meenakshisundarm, for
the respondents.
JUDGMENT
S. RAJESWARAN, J.—This revision petition has been filed against the order dated
13.1.2004, passed in I.A.No.2128/2003 in O.S.No.249/1990 on the file of the District Munsif
Court, Dharapuram.
2. The plaintiffs in O.S.No.249/1990 on the file of the District Munsif, Dharapuram are
the revision petitioners. They are aggrieved by the order of the trial Court dated 13.1.2004
by which the amendment application filed by them in I.A.No.2128/2003 is
dismissed.
3. The plaintiffs filed O.S.No.249/1990 for a declaration to declare that the suit
properties belong to them and for a mandatory injunction to remove the construction put up
by defendants 1 to 6 on the suit schedule properties. The plaintiffs’ case is that they have
been in continuous possession of the suit schedule property on the basis of the acquisition
proceedings of the revenue authorities dated 2.4.1916. 7th defendant who is the
Commissioner of the Dharapuram municipality filed a written statement in March, 1992
stating that the suit property belonged to municipality and it was acquired for their purpose.
9th defendant who is the Tahsildar in his written statement filed on 22.12.1998 stated that
the patta of the suit properties stood in the name of the municipality but the same was
converted into Natham Poramboke by G.O.No.761/Revenue Department dated 13.8.96 and,
therefore, it belonged to Government.
4. While so, in December, 2003, the plaintiffs filed I.A.No.2128/2003 under Order VI,
Rule 17, CPC to add the following in the body of the plaint at the end of para 7 of the plaint:
“The plaintiffs’ possession of the suit property admittedly, originates on 2.4.1916.
If for any reason this Hon’ble court comes to the conclusion that the acquisition
proceedings for 6 acres including the suit property in the year 1916 did not include
the interest of the Methodist Mission, into whose shoes, the Church of South India
had stepped in, the Methodist Mission and subsequently, the Church of South
India have perfected title by adverse possession of the suit property right from the
date 2.4.1916 till date. The plaintiffs further submit that the continuation
and exclusive possession and enjoyment in the hands of the Methodist
Mission land subsequently the CSI which could be characterised only as a
possession by the church which was constructed in the year 1916 itself, would lead
 to the characterisation of the suit property, only as a temple site into which do main
the Government has no locus standi in view of Section 2(1)(e) of the Tamil Nadu
Land Encroachment Act 1905".
5. The plaintiffs also wanted an alternative prayer in the prayer column after the
existing prayer which reads as under:
“and alternatively declare that the Methodist Mission land subsequently the Church
of South India had perfected title in the suit property by adverse possession right
from 2.4.1916 till date.”
6. This application was opposed by 1st defendant by filing a counter on the ground that
when the suit was pending for 13 years, the application has been filed only to further protract
the litigation and the alternative prayer would lead to a new cause of action and alter the
character of the suit.
7. The trial Court by order dated 13.1.2003 dismissed the application on the ground
that it is belated and it would alter the character of the suit. Aggrieved by the same, the
above civil revision petition has been filed under Article 227 of the Constitution of India.
8. Heard the learned counsel for the revision petitioners and the learned counsel for
respondents 1 to 6. I have also perused the documents and the judgments referred to by them
in support of their submissions.
9. The learned counsel for the revision petitioners submitted that the trial Court failed
to take note of the settled legal principles that amendment could be ordered at any time on
terms and the alternative prayer sought for in the amendment in addition to the existing
prayer would not alter the nature and character of the suit.
10. The learned counsel relied on the following decisions in support of his
submissions:
(1) AIR 1997 Mad.368 (Md.Salih v. T.C.Adam)
(2) 1997 (2) CTC 12 (Muthammal v. Thamburati)
(3) 2004 (2) M.L.J.80 (Kantharaju v. Dr.N.Kuppuswami)
(4) 2004 (2) M.L.J.211(Sengodan v. Sengodan)
(5) 2004 (2) M.L.J.411(Sarammal v. Dilshad Begum)
(6) 2004 (2) M.L.J.620 (Gunaseelan v. Thamilselvi)
11. Per contra, the learned counsel for respondents 1 to 6 submitted that the
amendment sought for would definitely alter the nature and character of the suit and the huge
delay is rightly put against the petitioners by the trial Court.
12. I have considered the rival submissions carefully with regard to facts and
citations.
13. A perusal of the judgments cited by the learned counsel for the petitioners would
bring out the following principles that are governing the application filed under Order VI,
Rule 17, CPC:
(1) Amendment to the pleadings cannot be turned down by Courts merely on
the score that they introduce an inconsistent plea or a new cause of action.
(2) The true test is whether the amendment is foreign to the subject matter of
the suit and if not whether it would be in the interest of justice to grant it.
 (3) Amendment may be allowed irrespective of law of limitation, if the cause
of action is not going to be changed and in the interest of justice.
(4) Since the amendment of the plaint being the discretion of the Court, it need
not be refused on technical grounds.
(5) Alternative relief sought by way of amendment can be allowed even if
belated, but the other side should be compensated with costs.
(6) Allowing of this application is a rule and rejection is an exception.
(7) Pre-trial amendment are to be allowed more liberally than those
which are sought to be made after the commencement of trial or after the
conclusion thereof.
(8) If it is permissible for the plaintiff to file an independent suit, there is no
difficulty in accepting his application for amendment of plaint.
14. Now let me consider the facts of the present case in the light of the above well
settled legal principles.
15. The main prayer in the suit is for a declaration to declare that the suit property
belongs to the plaintiffs on the basis of their uninterrupted possession. The municipality in
their written statement contended that the property belonged to them and the Tahsildar
on 22.12.1998 filed a written statement stating that the property belonged to the Government.
In such circumstances, the amendment application was filed for an alternative prayer of
perfection of title by adverse possession and also a descriptive para to be added in the plaint
to this effect.
16.It is true that the suit has been pending from 1990 onwards, but the written
statement of the Tahsildar was filed only in December 1998. Further, delay alone is not
the criterion to reject an Application filed under Order VI, Rule 17, CPC. If the proposed
amendment does not bring in a new cause of action or does not alter the nature and character
of the suit, the same could be allowed, even if it is belated by ordering cost to the other side
by way of compensation. 17. The trial Court observed that the trial has commenced and
the suit is posted for cross-examination of defendants 7 to 9 and therefore, the amendment
application if allowed would further delay the proceedings. This reasoning given by the trial
Court is not correct as amendment could be ordered at any time at any stage of the
proceedings for the purpose of determining the real questions in controversy between the
parties. Further in my considered view the proposed alternative prayer and the addition of
description in the plaint would not alter the nature and character of the suit and in fact it is in
consonance with the pleadings of the plaintiffs pleading that they have been in possession of
the property right from 2.4.1916. It is also pertinent to add that neither the Government nor
the municipality have filed a counter opposing the amendment application.
18. Hence, I am inclined to interfere with the orders of the trial Court. Accordingly the
order of the trial court dated 13.1.2004 is set aside and I.A.No.2128/2003 is allowed as
prayed for on condition, the plaintiffs/revision petitioners should pay a sum of Rs.3,000/- to
respondents 1 to 6 herein within 3 weeks from the date of receipt of the order. On such
compliance of the payment of Rs.3,000/, the trial Court is directed to permit the revision
petitioners/plaintiffs to carryout the amendment. On such amendment is being carried out,
the defendants in the suit are at liberty to file additional written statements, documents, if any
and to let in further evidence in this regard. It is also made clear that if the plaintiffs/revision
petitioners fail to comply with the direction of payment of cost within the time stipulated
above, the civil revision petition shall stand dismissed and the order of the trial Court dated
13.1.2004 is restored automatically without further reference to this Court.
19. Considering the fact that the suit has been pending for the past 17 years, the trial
Court is directed to show utmost urgency and conduct the proceedings preferably on day-to-
day basis and dispose of the suit itself within 8 months from today.
20. With the above directions, the above civil revision petition is allowed. No costs.
C.M.P.No.2776/2004 is closed.
Petition allowed.

[2007 (2) TNCJ 324 (Mad)]

MADRAS HIGH COURT
BEFORE:
S. RAJESWARAN, J.
JAYALAKSHMI ...Appellant
Versus
AROKKIAMARY AND OTHERS ...Respondents
[A.S.Nos. 216 and 261 of 2004, and C.R.P. (NPD) Nos. 97 of 2006 and 1108/2005, decided
on 6th June, 2007]
(A) Civil Procedure Code, 1908—Section 96—Compromise decree—No whisper
in it about the undertaking given prior to the compromise—Cannot be said that the
compromise is subject to the undertaking—Undertaking on its own will not give any
rights to the defendants as it only says that beneficiary of compromise would not
alienate the property—Undertaking is neither a settlement deed nor an agreement
signed by all the parties nor a will bequeathing the suit schedule properties nor it
confers any right on defendants 1 and 2—Undertaking cannot be put against 4 th
defendant for transferring the suit scheduled property to the plaintiff—Transfer is
valid—Plaintiff derives title and becomes the owner of the suit schedule property.
(Para 20)
(B) Indian Stamp Act, 1899—Section 35—Compromise decree—Not
engrossed on a stamp paper—Effect of—Compromise decree acted upon—Properties
were divided among the parties—Nothing remains to be done based on the compromise
decree—Not permissible to unsettle the settled thing after lapse of nearly 15 years—Not
permissible to raise additional ground at a belated stage to assail the compromise
decree. (Paras 22 to 25)
(C) Civil Procedure Code, 1908—Section 96—Cost of suit—Apportionment of—
Two sets of defendants contested separately not on similar grounds—Trial Court ought
to have apportioned the cost between the two sets of defendants—Decree modified
accordingly.
(Para 43)
Case law.—47 LW 51; AIR 1969 SC 1238; AIR 1973 SC 2391; 1990 (1) SCC 193;
1970 (1) SCC 670; AIR 1996 SC 1819; 2004 (1) SCC 287; AIR 1956 SC 12; AIR 1961 SC
1655; 2005 (3) LW 640.
 Counsel.—Mr. A.A. Lawrance, for the appellants/ petitioners in A.S.No. 261/04 &
CRP.NPDs. Nos. 1108/05 and 97/06; Mr. K.P. Gopalakrishnan, for the Ist respondent in all
cases.
JUDGMENT
S. RAJESWARAN, J.—A.S.Nos.216/2004 has been filed by the 3rd defendant against
the judgment and decree dated 30.9.3003 made in O.S.No.4225/1999 on the file of the III
Addl.Judge, City Civil Court, Chennai. 2. A.S.No.261/2004 has been filed by
defendants 1 and 2 against the judgment and decree dated 30.9.3003 made in
O.S.No.4225/1999 on the file of the IIIrd Addl. Judge, City Civil Court, Chennai.
3. CRP.NPD No.97/2006 has been filed by defendants 1 and 2 against the dismissal of
the application filed under Sec.47 of CPC in E.A.No.5825/2005 in E.P.No.786/2005 in
O.S.No.4225/1999 dated 27.12.2005 passed by the Xth Asst. City Civil Judge, Chennai.
4. CRP.NPD No.1108/2005 has been filed by 1st defendant against the dismissal of
the application filed under Section 47, CPC, in E.A.No.6253/2004 in E.P.No.1400/2004 in
O.S.No.4225/1999 dated 1.4.2005 passed by Xth Asst. City Civil Judge, Madras.
5. O.S.No.4225/1999 was filed by the plaintiff/1st respondent in both the first appeals
for a judgment and decree directing defendants 1 and 2 in the suit (appellants in
A.S.No.261/2004) and 3rd defendant (appellant in A.S.No.216/2004) to vacate and hand over
possession of the portions in their occupation in the suit schedule property and for a further
direction directing defendants 1 and 2 to pay a sum of Rs.62,500/- towards damages and to
pay a sum of Rs.3,500/- per month from the date of the plaint till they hand over vacant
possession. Similarly the plaintiff sought for a direction directing 3rd defendant to pay a
sum of Rs.87,500/- towards damages and to pay a sum of Rs.4,500/- per month from the
date of the plaint till she hand over possession. The suit schedule property is the entire
ground floor portion, except two shops measuring 240 sq.ft., in the occupation of the
plaintiff, which is in the occupation of defendants 1 and 2 and the entire 1st floor portion
which is in the occupation of 3rd defendant in premises No.16, Vellayutha Pandian Street,
Old Washermanapet, Chennai, 21.
6. Briefly stated the plaint averments are as under:
The suit schedule property was originally owned by one Kumarasamy Nadar. The said
Kumarasamy Nadar died leaving behind a number of legal heirs including his wife,
A.V.K.Kasthuri Bai, the 4th defendant in the suit. In a partition suit filed by the legal heirs of
Kumarasamy Nadar, a compromise decree was passed by this court in A.S.No.614/1984 on
21.7.1989. The suit property, as per the compromise decree was allotted to 4th defendant,
who on 12.6.97 sold the same to the plaintiff for a sum of Rs.4,50,000/- by executing a sale
deed registered as document No.1499 of 1997 at Sub-Registrar Office, Royapuram. It is
the case of the plaintiff that the defendants trespassed into the premises after she purchased
the property. As trespassers they are liable to pay damages for their prior occupation and
also for their present occupation as prayed in the plaint.
7. Defendants 1 and 2 filed a written statement stating that they are brothers and 3rd
defendant is their sister. They along with A.V.K.Senthilkumar, A.V.K.Murugesan, 3rd
defendant and Dhanapakkiammal are the children of Kumarasamy Nadar and 4th defendant
who is 2nd wife of their father. Defendants 1 and 2 admit that a compromise decree was
passed in A.S.No.614/1984, but before signing the compromise memo, 4th defendant, their
mother, gave an undertaking in writing on 28.6.1989 to the effect that she would not alienate
the suit schedule property during her life time and after her death it should be divided equally
among her 4 sons.
 8. Therefore, according to defendants 1 and 2 their mother, i.e., 4th defendant has no
power to execute the sale deed in favour of the plaintiff. Defendants 1 and 2 further state that
they are not trespassers and they have been in possession of their portions for the past so
many years and they have never vacated their portions and re-occupied the same after
purchase as alleged by the plaintiff. Therefore, they contended that the plaintiff has ;no title
and she cannot ask for recovery of possession and damages from them.
9. The 4th defendant filed a separate written statement in which she also admits that
the suit schedule property belongs to her absolutely on the basis of the compromise decree
in A.S.No.614/1984. But she has stated that in the year 1997, youngest son
A.V.K.Senthilkumar obtained her signature on stamp papers by falsely representing that it is
a settlement deed settling the suit property in favour of her daughter Jayalakshmi the 3rd
defendant. She further stated that 3rd defendant has been living in that property always
and she is not a trespasser. A similar written statement was filed by 3rd defendant as that
of the written statement of 4th defendant.
10. With the above pleadings the trial Court framed the following 3 issues namely,
“(1) Whether the plaintiff is entitled to get possession of the suit schedule
property?
(2) Whether the plaintiff is entitled to get damages from the defendants?
(3) What other reliefs the plaintiff is entitled to?”
11. The following additional issues were also framed by the trial Court:
“(1) Whether defendants 1 to 3 are in possession of their portions in the suit
schedule properties as trespassers?
(2) Whether the undertaking dated 28.6.1989 is true and valid?
(3) Whether the sale deed dated 12.6.97 is legally sustainable or not?”
12. For the additional issues 2 and 3, the trial Court after evaluating the evidence,
held that the undertaking dated 28.6.1989 is not a valid document and not binding on fourth
defendant and the sale deed dated 12.6.97 is a legally enforceable document. For the other
issues the trial Court held that even though the defendants are not trespassers, they are not in
lawful possession of their portions and therefore they are liable to hand over possession
of the same to the plaintiff. The trial Court further held that defendants 1 and 2 should pay a
sum of Rs.1,000/- per month from 7.7.99 (date of filing of the suit) to the plaintiff till the
possession is handed over by them. Similarly 3rd defendant is directed to pay a sum of
Rs1,500/- per month from 7.7.99 (date of filing of the suit) to the plaintiff till she hands over
possession. The trial Court further directed the defendants to pay a sum of Rs.58,590.50 as
cost to the plaintiff.
13. Aggrieved by the judgment of the trial Court dated 30.9.2003, defendants 1 and 2
and defendant 3 filed the above first appeals separately. 14. In A.S.No.261/2004 filed
by defendants 1 and 2, the appellants, in their grounds attacked the entire findings of the trial
Court and contended that if the entire matter is reconsidered by this Court, the judgment of
the trial Court is to be set aside and the suit is to be dismissed. Defendants 1 and 2 raised
additional grounds in A.S.No.261/2004 in which for the first time they questioned the very
validity of the compromise decree itself dated 21.7.1989 on the ground that the same was not
engrossed on Non-Judicial stamp paper as per Sec.35 of the Indian Stamp Act and in such
circumstances nobody can act on the basis of the compromise decree. As the sale deed dated
12.6.97 itself was executed by their mother, 4th defendant on the basis of her right in
A.S.No.614/1984, the sale deed itself is not a valid document by which the property cannot
be transferred to the plaintiff. The appellants in A.S.No.261/2004 further raised an
addition ground to the effect that the trial Court committed an error in directing all the three
defendants to bear the cost of the plaintiff without any apportionment as defendants 1 and 2
defended the suit separately and so did 3rd defendant.
15. Heard the learned counsel for the appellants in A.S.No.261/2004 and the learned
counsel for the 1st respondent/plaintiff. I have also perused the documents filed and the
judgments referred to by them in support of their submissions.
16. The learned counsel for the appellants/defendants 1 and 2 strenuously contended
that the trial Court has committed a serious error in disregarding the undertaking dated
28.6.1989 given by their mother, 4th defendant especially when she herself admitted that she
signed that undertaking. The learned counsel urged that if the undertaking dated 28.6.89 is
acted upon, 4th defendant has no right to sell the property to the plaintiff and the sale deed
dated 12.6.1997 is not a valid document. The learned counsel further placed great emphasis
on the additional ground namely, as the compromise decree itself was not engrossed on
stamp papers, the same cannot be acted upon by anyone and consequently the sale deed
executed by 4th defendant to the plaintiff on the basis of her right derived from the
compromise decree is a nullity in the eye of law. The learned counsel relied on the following
decisions in support of his submissions:
(1) 47 L.W. 51 (Satyanandam v. Nammayya)
(2) AIR 1969 SC 1238 (H.S.Ltd. v. M/s.Dilip Construction)
(3) AIR 1973 SC 2391 (Chandrika v. Bhaiyalal)
(4) 1990 (1) SCC 193 (Sushil Kumar Mehta v. Gobind Ram Bohra)
(5) 1970 (1) SCC 670 (V.D.Modi v. R.Abdul Rehman and Ors.)
(6) AIR 1996 SC 1819 (Urban Improvement Trust, Jodhpur v. Gokul
Narain)
(7) 2004 (1) SCC 287 (Rafique Bibi v. Sayed Waliuddin)
17. Per contra, the learned counsel for the 1st respondent/ plaintiff submitted that
the compromise decree dated 21.7.1989 was marked as Ex.A1 before the trial Court without
any objections and in fact all the defendants unanimously admitted and accepted the said
compromise decree. Therefore, it is not for the appellants/ defendants 1 and 2 to question
the validity of the same for the first time before this Court that too, as an additional ground.
The learned counsel added that Section 35 of the Indian Stamp Act is not applicable in
the present case and as per Section 36 of the Act, the validity of the compromise decree
cannot be questioned at all by the defendants. He further pointed out that the so called
undertaking dated 28.6.1989 marked as Ex.B-4 is not at all a valid document and even a
cursory look of the same will establish that it is a bogus document created for the purpose
of the suit only. He relied on the decisions of the Supreme Court reported in (1) AIR 1956
SC 12 (Annamalai v. Veerappa); (2)AIR 1961 SC 1655 (Javer Chand v. Pukhraj Surana).
The learned counsel further submitted that the right of the plaintiff arose from the sale deed
dated 12.6.1997 which is a properly stamped and registered document and not from the
compromise decree. Even otherwise, the learned counsel for 1st respondent/plaintiff
submitted that even now the compromise decree could be engrossed on a stamp paper if it is
necessary. For which the learned counsel for the appellants replied that as the compromise
decree was passed on 21.7.1989, it is not open to the parties to engross the same on stamp
paper in the year 2007 as the period of limitation would start running from the date of the
decree and not from the date of engrossing it on a stamp paper. For this purpose, he relied on
the decision of the Supreme Court reported in 2005(3)L.W.640 (Dr.Chiranjilal (D) By L.Rs.,
v. Haridas(D) By L.Rs.) to submit that period of limitation begins to run from the date when
the decree is passed and not from the date when the decree is engrossed on the stamp
papers supplied by the parties.
18. In the light of the above pleadings pleaded, grounds of appeal raised and
arguments advanced, the following issues emerge for consideration:
(1) Whether the undertaking dated 28.6.1989 is binding on 4th defendant and
consequently she is not entitled to execute the sale deed dated 12.6.1997?
(2) Whether the plaintiff/1st respondent in both A.S.Nos.216 and 261 of 2004
derives title to the suit schedule property on the basis of the sale deed dated
12.6.1997?
(3) Whether the compromise decree dated 21.7.1989 could not be acted upon
in view of Section 35 of the Indian Stamp Act?
(4) Whether the plaintiff/1st respondent in both A.S.Nos.216 and 261 of 2004
is entitled to get possession of the portions of the suit schedule properties
under the occupation of the defendants?
(5) Whether the damages granted by the trial Court to the plaintiff/1st
respondent in both A.S.Nos.216 and 261 of 2004 are sustainable?
(6) Whether the trial Court is wrong in not apportioning the costs between
defendants 1 and 2/appellants in A.S.No.216/2004 and 3rd
defendant/appellant in A.S.No.261/2004?
(7) To what other reliefs the plaintiff/1st respondent in A.S.Nos.216 and 261
of 2004 is entitled to?
19. Issues 1 and 2: The entire case of the plaintiff hinges on the sale deed dated
12.6.1997 executed by 4th defendant in her favour. The sale deed dated 12.6.97 was marked
as Ex.A2. A perusal of Ex.A2 would make it very clear that it was executed by 4th defendant
by stating that the suit schedule property was allotted to her share in the compromise decree
dated 21.7.1989 in A.S.Nos.614/1984 and the property belongs to her absolutely. Ex.A2
further discloses that a sum of Rs.4,50,000/- was paid by the plaintiff and possession was
given to the plaintiff. This sale deed was duly registered as document No.1499/1997 at
S.R.O., Royapuram. One of the witnesses to this document is none other than 4th defendant’s
own son K.Senthilkumar. But this document was assailed by defendants 1 and 2 on the
ground that a compromise decree dated 21.7.89 made in A.S.Nos.614/1984 is subject to the
undertaking given by 4th defendant on 28.6.1989. The undertaking document was
marked as Ex.B4. This document is titled as @cWjpbkhHp gj;;;;;;;jpuk;@ in Tamil. As per
the document an undertaking was given by 4th defendant that she would not alienate the suit
schedule property till her death, but she would enjoy the same. If any final decree is to be
passed before her death, then she would execute a settlement deed in favour of her four sons.
Even if she does not execute a sale deed before her death, the same should go to her four sons
in equal shares. Relying on this undertaking defendants 1 and 2 contended that even though
it was stated in the compromise decree that the suit property belonged to her absolutely, she
had no right to alienate the property to the plaintiff on the basis of the undertaking given
by her. In her deposition 4th defendant as D.W.3 admits that Ex.B4 was an
undertaking given by her to her sons, but she denied that the contents of the deed were
known to her. Even though 4th defendant is prevaricating in her statement about the
execution of Ex.B4, in the present suit and also in the previous suits filed between the
parties, her consistent stand is that notwithstanding Ex.B4, she has got absolute right over the
suit schedule property.
20. It is not in dispute that the suit schedule property was allotted to 4th defendant
absolutely in the compromise decree dated 21.7.1989 and there was no mention about the
undertaking dated 28.6.89 as is evident from the compromise decree which was marked as
Ex.A1. This fact was also admitted by 1st defendant as D.W.1 in his deposition. In fact
D.W.1 has clearly stated in the cross-examination that as per the compromise decree, her
mother is the absolute owner of the property and there was not even a whisper about Ex.B4 in
the compromise decree even though Ex.B4 was signed by his mother much before signing
the compromise memo. In such circumstances, it cannot be said that the compromise decree
with regard to 4th defendant is subject to the undertaking signed by her on 28.6.1989. That
apart, the undertaking on its own will not give any rights to the defendants as it only says that
she would not alienate the property. She would execute the settlement deed in favour of her
four sons in the event of final decree being passed and even if she does not execute the
settlement deed before her death, the property would go to her four sons equally. Thus, this
undertaking is neither a settlement deed, nor an agreement signed by all the parties nor a Will
bequeathing the suit schedule properties nor it confers any right on defendants 1 and 2.
That is the reason for not making claim by the other two sons with regard to suit schedule
properties. In fact one of the other two sons was a witness to the sale deed dated 12.6.1997
(Ex.A2). In such circumstances, the only conclusion that could be arrived at is that the
undertaking dated 28.6.1989 cannot be put against 4th defendant for transferring the suit
schedule property to the plaintiff. As a valid transfer has been made under the sale deed
dated 12.6.1997 (Ex.A2) the plaintiff derives title and has become the owner of the suit
schedule property. Thus, the issue Nos.1 and 2 are answered in the above terms in favour of
1st respondent/plaintiff and against the appellants/defendants 1 and 2.
21. Issue No.4: As I have held that the plaintiff has become the owner of the suit
schedule property on the basis of Ex.A2, consequently I am holding that she is
entitled to get possession of the property from the defendants. Considering the fact that
defendants 1 and 2 claim right over the property only on the basis of Ex.B4, which in my
view does not confer any right on them, they have no rights over the suit schedule property
and the plaintiff is entitled to get possession of the suit schedule property from
defendants 1 and 2. Thus the issue No.4 is answered in favour of 1st respondent/plaintiff and
against the appellants/defendants 1 and 2.
22. Issue No.3: Great efforts were taken by the learned counsel for the appellants to
assail the order of the trial Court on the basis of the additional ground namely, as the
compromise decree dated 21.7.1989 made in A.S.No.614/1984 marked as Ex.A1 was not
engrossed on stamp paper, Section 35 of the Indian Stamp Act will hold the field and the
decree itself is not a valid decree and consequently Ex.A2 is also a nullity in the eye of
law.
23. This issue was not at all raised before the trial Court and no objection whatsoever
was raised by any of the defendants when the compromise decree was marked as Ex.A1. In
fact all the parties to the suit admit and accept that there was a compromise decree and on
that basis properties were allotted to various legal heirs including 4th defendant. The only
objection by defendants 1 and 2 before the trial Court is that in view of Ex.B-4, 4th defendant
could not execute the sale deed dated 12.6.1997, i.e., Ex.A-2. Now their contention in that
appeal is that as the compromise decree was not engrossed on a stamp paper, the same is a
nullity in the eye of law and the trial Court ought not to have acted upon it to come to a
conclusion that Ex.A2 sale deed dated 12.6.1997 is validly executed by 4th defendant in
favour of the plaintiff.
24. I am unable to accept this last minute desperate attempt on the part of the
appellants/defendants 1 and 2 to assail the sale deed dated 12.6.1997, Ex.A2.
25. The entering into a compromise among the family members was not at all disputed
by any one, which culminated into passing a judgment by this Court in A.S.No.614/1984
(Ex.A1) on 21.7.1989. It is also not in dispute that based on the compromise decree, the
properties were divided among the parties including defendants 1 and 2 and 4th defendant.
Thus all the parties to the compromise decree acted upon as per the clauses contained therein
and that is why the suit schedule property was specifically allotted to 4th defendant. Thus,
the compromise decree and its clauses were completely acted upon, parties to the decree
were allotted with properties on the basis of the compromise decree. In such
circumstances, nothing else remains to be done based on the compromise decree passed on
21.7.1989. Therefore, the appellants/defendants 1 and 2 could not unsettle the settled things,
that too at this juncture after a lapse of nearly 15 years. Further they themselves agree with
the entire clauses contained in the compromise decree and that is the reason the appellants
filed a suit in C.S.No.723/2000 before this Court for declaration to declare the compromise
decree dated 21.7.1989 to be set aside insofar as allotment of the suit schedule property to 4th
defendant is concerned. By filing C.S.No.723/2000, the appellants/defendants 1 and 2 now
admit that the entire compromise decree is valid except the portion in which the suit
schedule property was absolutely allotted to 4th defendant. This conduct will also go against
them for the reason that if the appellants/defendants 1 and 2 are of the view that the
compromise decree is a nullity as the same was not engrossed on a stamp paper, then they
cannot maintain that it is valid insofar as the other clauses are concerned, but invalid insofar
as allotting the suit schedule property to fourth defendant is concerned. Therefore, I reject
this additional ground raised at a belated stage to assail the compromise decree by itself.
Further the compromise decree insofar as the allotment of suit schedule property is
concerned, the same is under challenge in C.S.No.723/2000. In fact it was admitted by
D.W.1 in his cross-examination that they filed an application to try both C.S.No.723/2000
and O.S.No.4225/1999 together, but the same was rejected by this Court and the appeals filed
were also rejected.
26. Now let me consider the decisions relied on by both the learned counsel in this
regard.
27. In 47 L.W. 51 (cited supra), a Division Bench of this Court held that a final decree
for partition has no existence as a decree until it is engrossed on the proper non-judicial
stamp paper and till that is done the suit is pending.
28. The facts in the above case are totally different and in view of the peculiar facts of
the present case, the appellants cannot draw any support from the above decision.
29. In 1969 S.C. 1238 (cited supra), the Hon’ble Supreme Court held that by Sec.36 of
the Indian Stamp Act an instrument once admitted in evidence shall not be called in
question at any stage of the same suit or proceeding on the ground that it has not been duly
stamped. Section 36 does not prohibit a challenge against an instrument that it shall not be
acted upon because, it is not only duly stamped, but on that account there is no bar against an
instrument not duly stamped being acted upon after payment of the stamp duty and penalty
according to the procedure prescribed by the Act.
30. This decision is also not helpful to the appellants as the entire compromise decree
was acted upon by all the parties before the suit itself was filed by the plaintiff.
31. In 1973 SC 2391 (cited supra) the Hon’ble Supreme Court held that where the
Court is inherently lacking in jurisdiction, the plea as to jurisdiction may be raised at any
stage even if it was not raised in trial Court.
32. In 1990 (1) SCC 193 (cited supra), the Supreme Court held that the decree passed
by a Court without jurisdiction over the subject-matter or on other grounds which goes to
the root of its exercise or jurisdiction, lacks inherent jurisdiction. It is a coram non judice
and a decree passed by such a Court is a nullity and is non est. Its invalidity can be set up
whenever it is sought to be enforced or is acted upon as a foundation for a right even at the
stage of execution or in collateral proceedings.
33. In 1970 (1) SCC 670 (cited supra), the Supreme Court held that when a decree
which is a nullity is sought to be executed an objection in that behalf may be raised in a
proceeding for execution. Again when the decree is made by a Court which has no inherent
jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if
the objection appears on the face of the record.
34. In AIR 1996 S.C. 1819 (cited supra), the Supreme Court held that nullity has to be
understood in the sense that it is ultra vires of the powers of the Court passing the decree and
not merely avoidable decree. Nullity can be assailed at any stage including at the execution or
in a collateral proceedings since it strikes at the very jurisdiction and authority of the Court.
35. In 2004 (1) SCC 287 (cited supra) the Supreme Court held that a decree can be
said to be without jurisdiction and hence, a nullity, if the Court passing the decree usurped
the jurisdiction which it did not have.
36. Citing the above decisions, it was strongly contended by the learned counsel for the
appellants/defendants 1 and 2 that as the decree has been passed on the basis of the
compromise decree which was not engrossed on proper stamp papers, the same is a nullity in
the eye of law.
37. I am unable to accept this contention for the simple reason that all the above
decisions dealing with the issue of jurisdiction will not apply to the decree under challenge
before me as by no stretch of imagination it can be said that the trial court did not have the
jurisdiction to try O.S.No.4225/1999.
38. In AIR 1956 SC 12 (cited supra), the Supreme Court while dealing with Section
36 of the Indian Stamp Act held that where a document has been admitted in evidence by a
lower Courts, such admission cannot be called in question at any stage of the proceedings on
the ground that it has not been duly stamped. The provisions of Section 36 of the Act
preclude the parties from raising any objection against the admission of documents at
appellate stage.
39. In AIR 1961 SC 1655 (cited supra), the Supreme Court held that once a document
has been admitted in evidence inadvertently, without the Court applying its mind to its
admissibility it is not open either to the trial Court itself or to the Court of appeal or revision
to go behind that order as Section 36 of the Stamp Act comes into operation.
40. From the above decisions it is very clear that the admissibility of Ex.A1 can
never be questioned by the appellants as no objections were raised before the trial Court in
this regard. Further the entire compromise decree and its clauses were already acted upon
and the same cannot be questioned now, that too, questioning only a portion wherein the
suit schedule property was absolutely allotted to 4th defendant. Even this question with
regard to the allotment of suit schedule property to 4th defendant is subjudice, pending in
C.S.No.723/2000.
41. In the light of the above discussions, issue No.3 is also decided against the
appellants and in favour of the plaintiff.
42. Issue No.5: Considering the relationship of the parties, the trial Court has correctly
held that the plaintiff is entitled to damages only from the date of filing of the suit and I am in
entire agreement with the trial Court in this regard.
43. Issue No.6: The trial Court has awarded cost to the plai apportionment. As rightly
pointed out by the appellants, the suit was contested separately by defendants 1 and 2
together and separately by 3rd defendant that too, not on similar grounds. In such
circumstances, the trial Court ought to have apportioned the cost between defendants 1 and 2
on one side and 3rd defendant on the other side. Hence, the trial Court decree is modified to
that extent, that is, 50% of the cost awarded by the trial Court is to be paid by defendants 1
and 2 and the remaining 50% should be paid by third defendant.
44. In the result, I find no merits in the above appeal in A.S.No.261/2004 and the
same is dismissed with costs, with the modification as stated above.
45. Even though third defendant filed a separate appeal in A.S.No.216/2004, the same
was not pursued and none appeared to argue A.S.No.216/2004. However as the same was
also filed against the very same decree made in O.S.No.4225/1999, A.S.No.216/2004 is also
to be dismissed with costs in view of the orders passed by me in A.S.No.261/2004.
Accordingly, A.S.No.216/2004 is also dismissed with costs, with the modification as stated
above.
46. CRP.NPD.Nos.1108/2005 and 97/2006 were filed by 1st defendant and
defendants 1 and 2 respectively questioning the jurisdiction of the trial Court and the
validity of the decree made in O.S.No.4225/1999 before the execution Court. In view of the
orders passed by me in A.S.No.261/2004 upholding the validity of the decree made in
O.S.No.4225/99, the above civil revision petitions are to be dismissed.
47. Hence, C.R.P.NPD.Nos.1108/2005 and 97/2006 are dismissed. No costs.
Appeal and Petitions dismissed.

[2007 (2) TNCJ 336 (Mad)]

MADRAS HIGH COURT
BEFORE:
S. RAJESWARAN, J.
LOURDURAJ ....Petitioner
Versus
HENDRY ...Respondent
[C.R.P. (NPD) Nos. 2102 of 1999 and 3871 of 2001, decided on 11 th June, 2007]
(A) House and Rent—Eviction suit—On the ground of wilful default and owner’s
occupation—Default not found wilful— Landlord proved his bona fide in requiring
the petition property but suit dismissed as the eviction petition was filed within three
months from the date of purchase of property—Sustainability of finding on merits—
Point regarding maintainability of eviction petition not specifically raised—No such
issue framed—Plea raised at the time of argument—Findings recorded on the merits of
the issues already framed—No irregularity committed in rendering findings on merits
even though the petition was dismissed on technical ground—Conduct of tenant in
questioning the sale deed not approved—Relationship of landlord and tenant is evident
from the depositing of rent against the earlier landlord and his brother—Landlord after
purchase of property is competent to file the eviction petition against tenant—
Landlord has proved his bona fide in requiring the tenanted premises for his own
occupation— Concurrent findings of two authorities below—No infirmity or
perversity committed—No interference warranted.
(Paras 12 to 17)
(B) House and Rent—Eviction order—Based on pervious eviction petition
wherein a finding was recorded in favour of landlord with regard to bona fide
requirement—Affirmed by the appellate authority—Legality of—Two authorities
below applied their mind independently and found that there is a landlord- tenant
relationship—Findings of previous rent control proceedings could be relied upon by the
authorities in the later rent control proceedings—Authorities applied their mind
independently to come to the conclusion without being overinfluenced by the previous
findings—Denial of Landlord’s title by tenant is not bona fide—Tenant cannot contend
that the landlord should approach only the Civil Court.
(Paras 18 to 21)
(C) House and Rent—Eviction petition—Inference of proper pleading—No lack
of necessary pleading—Concurrent finding of the authorities below by exercising
powers under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act,
1960—No in terference warranted. (Paras 22 to 27)
Case law.—92 LW 766; 2002 (5) SCC 337; 1994 (2) MLJ 447; 1993 (1) MLJ 17;
1976 (1) MLJ 406; 1993 (1) LW 356.
Counsel.—Mr. P. Rajagopal, for the petitioner; Mr. S.V. Jayaraman, Senior Counsel for
Mr.S. Sounthar, for the respondent. JUDGMENT
S. RAJESWARAN, J.—These revision petitions have been filed against the order dated
12.8.1998 and 10.10.2001made in R.C.A.Nos.12/97 and 10/99, on the file of the Appellate
Authority, (Principal Sub-Judge) Mayiladuthurai confirming the orders dated 9.4.97 and
10.8.99 made in RCOP Nos.10/96 and 32/97 on the file of the rent controller (Principal
District Munsif) Mayiladuthurai, respectively.
2. As the parties are one and the same and the property involved in all the revision
petitions is the very same property, a common order is being passed to dispose of both the
revision petitions.
3. The brief facts are as under:
These revision petitions are filed by the tenant. RCOP No.10/1999 was filed by the
respondent herein, hereinafter called ‘the landlord’, against the revision petitioner,
hereinafter called ‘the tenant’, for eviction on the ground of wilful default and owner’s
occupation. The case of the landlord in RCOP No.10/1999 is that he purchased the petition
property on 25.3.1996 from one T.R. Anthonysamy represented by his Power of Attorney.
The tenant was already there in the property even before his purchase and therefore he
became his tenant after purchase. As he did not pay the rent from 25.3.1996 to 25.5.1996,
the tenant committed wilful default in the payment of rent. The landlord further stated in his
petition that he purchased the property from the erstwhile owner for the specific purpose of
his own occupation and he did not have any other residential property other than the
petition property.
4. The tenant resisted the RCOP by contending that he was not aware of the purchase
of the property by the landlord on 25.3.1996. He further pleaded that he became a tenant of
the property under his possession through one Paul Iruthayaraj, the brother of the owner of
Anthonysamy and he has been in occupation of the property since 1982 by paying a monthly
sum of Rs.125/-. Therefore the tenant denied that the landlord is competent to evict him as
he has never been a tenant under the landlord. The rent controller after going through the
evidence found that the landlord is competent to file the eviction petition and the landlord has
become the owner by virtue of his purchasing the property from the said Anthonysamy.
Insofar as the wilful default aspect is concerned, the rent controller found that the default was
not wilful. As regards the question of owner’s occupation is concerned, even though the
rent controller found that the landlord proved his bona fide in requiring the petition property,
the rent controller dismissed the RCOP on this ground also as eviction petition was filed
within 3 months from the date of purchase of the property.
5. Even though the RCOP was dismissed on technical ground, that is, filing the RCOP
for eviction on the ground of bona fide requirement for owner’s occupation within 3
months from the date of purchase, the tenant was aggrieved by the findings of the rent
controller that the landlord is competent to file an eviction petition on the basis of the sale
deed dated 25.3.1996 and that the landlord bonafidely required the property for his own
occupation. Therefore, he filed RCA No.12/1997 against those findings alone and the rent
control appellate authority after re-evaluating the evidence confirmed the findings of the rent
controller. Aggrieved by the order of the appellate authority dated 12.8.1998 made in RCA
No.12/1997 confirming the findings of the rent controller dated 9.4.1997 made in RCOP
No.10/1996, the tenant has filed CRP (NPD) No.2102/1999.
6. After the dismissal of the RCOP No.10/1996 on 9.4.1997, the landlord filed
RCOP No.32/1997 for evicting the tenant on the ground of owner’s occupation alone.
The rent controller by order dated 10.8.1999 allowed the RCOP against which the
tenant filed RCA No.10/99 and the appellate authority by order dated 10.10.2001
dismissed the appeal and confirmed the order of the rent controller. Aggrieved by the
order of the appellate authority the tenant has filed the CRP (NPD) No.3871/2001.
7. Heard the learned counsel for the tenant and Mr.S.V. Jayaraman, the learned senior
counsel for the landlord. I have also perused the documents filed and the judgments referred
to by them in support of their submissions.
8. The learned counsel for the tenant vehemently contended that both the authorities
below in CRP (NPD) No.2102/1999 committed illegality in rendering a finding on merits
when the RCOP was to be dismissed on the ground that the same was filed within 3 months
from the date of purchase. Instead of simply dismissing the RCOP, the rent controller went
into the merits unnecessarily and gave adverse findings against the tenant which are to be
set aside in this revision petition. The learned counsel further contended that even otherwise
those findings given in RCOP No.10/1996 and RCA No.12/1997 are not binding on the
authorities who decreed the RCOP No.32/1997 and RCA No.10/1999, against which CRP
(NPD) No.3871/2001 was filed. The learned counsel further added that as the latter
authorities were influenced by the findings of the former authorities, the orders are to be set
aside and both CRP (NPD) Nos.2102/1999 and 3871/2001 are to be allowed. The learned
counsel for the tenant has also pointed out that in the RCOP filed by the landlord there are no
proper averments and therefore, for the lack of necessary pleadings the RCOP ought to
have been dismissed by the rent controller.
9. The learned counsel for the tenant relied on the decision of this Court reported in 92
L.W. 766 (Anbiah v. Mercy Bell) to submit that if the petitioner does not satisfy the meaning
of the word tenant within the meaning of Sec.2(8)(i) of the Act then the petition for eviction
is not maintainable. He further relied on the decision of this Court reported in 1994 (2)
M.L.J.447 (Venkata Naicker Trust v. Muthusamy Chettiar) and the decision of the Supreme
Court reported in 2002(5) SCC 337 (A.V.G.P.Chettiar v. T.Palanisamay Gounder) and
1993(1)MLJ 17 (Balu Chettiar v. Solaimalai Chettiar) to submit that when there is a bona
fide dispute with regard to the title to the building, the landlord is entitled to claim eviction
in a Civil Court only. For the purpose of lack of proper pleading in the eviction petition,
the learned counsel relied on a decision of this Court reported in 1993(1) L.W.356
(Ramalingam Pillai v. Murugesan). The learned counsel placed strong reliance on the
decision of this Court reported in 1976 (1) MLJ 406 (Govindarajulu v. Jayaraman) to
submit that when there is a mandatory direction, prohibiting the court to pass any eviction
order against a person who comes squarely under Section 10 (4) (i), the finding by the court
on other issues regarding the bona fide must be construed as void ab-initio and such finding
in a prior petition should not be relied on by the Courts in the later petition.
10. Per contra, the learned senior counsel submitted that by his own conduct the tenant
has accepted that he is a tenant under the landlord, therefore, his denial of the title of the
landlord is with mala fide intention and in such circumstances the authorities below are
within the jurisdiction to pass the order of eviction and also to render proper findings.
Further he specifically pointed out that in the second round of litigation both the authorities
below have independently gone into the question of the landlord-tenant relationship and
therefore, it cannot be said that they have simply followed the earlier findings. For the
question lack of pleading in the second RCOP filed by the landlord, the learned senior
counsel submitted that proper pleadings are there in the petition and the question of bona fide
has been gone into as many as four authorities below and all of them held that the landlord’s
requirement for his own occupation is bona fide.
11. I have considered the rival submissions with regard to facts and citations.
12. First let me consider CRP.NPD.No.2102/1999 in which the finding of the
authorities below are alone were challenged as unnecessary by the tenant. It is an
admitted fact that the first RCOP was filed within 3 months from the date of its purchase. But
this point was not specifically raised by the tenant in his counter filed in RCOP No.10/1996.
Therefore, there was no such issue to that effect. All the issues framed were on merits. At no
point of time before the argument stage, this plea was raised by the tenant and only at the
time of argument this point was raised before the rent controller and after finding that the
property was purchased on 25.3.1996, but the RCOP was filed on 3.6.1996, the rent
controller dismissed the RCOP on this technical ground after rendering findings on merits on
the issues framed by him. Therefore, it cannot be said that the rent controller has committed
an irregularity in rendering findings on merits, even though the RCOP was dismissed on
technical ground. The decision relied on by the learned counsel for the tenant in this regard,
i.e., 1976 (1) MLJ 406 (cited supra) is easily distinguishable because, there, Section 10 (4) (i)
was involved. According to which no order for eviction shall be passed under sub-section
(3), against any tenant who is engaged in any employment notified by the
Government as an essential service for the purpose of this sub- section, unless the landlord
himself is engaged in any employment or clause of employment which has been so notified.
Only in that context the learned Judge of this Court held that the rent controller should not
have decided the other issues in view of the clear prohibition contained in Section 10 (4) (i)
of the Act. In the case on hand, Section 10 (4) (i) is not at all applicable and what is relevant
is the proviso under Section 10 (3) (a) according to which a person becomes a landlord after
the commencement of the tenancy by an instrument inter vivos shall not be entitled to apply
under this clause before the expiry of 3 months, from the date on which the instrument was
registered. Thus the language employed in Section 10 (4) (i) and the language used in
proviso in Section 10 (3) (a) are distinct and different and the decision reported in 1976
(1) M.L.J.406 (cited supra) is not applicable to the present case.
13. Now let me consider whether the concurrent findings by the authorities below
holding that there is a landlord-tenant relationship and the landlord has proved his
requirement bonafidely are to be interfered with or not. The case of the tenant right from day
one is that the premises under his occupation was owned by one Anthonysamy and
Anthonysamy’s brother Paul Irudhayaraj inducted him as tenant in June, 1982 on a monthly
rent of Rs.125/- after receiving an advance of Rs.1000/-. It is his further case that he was
paying the rent up to December 1994 and thereafter deposited the rent in RCOP No.13/1995
in which both Anthonysamy and Paul Irudhayaraj were arrayed as respondents. But it has
been established that the very same property was purchased by the present landlord
from the previous owner Anthonysamy on 25.3.1996 under a registered sale deed, marked as
Ex. A-3 before the rent controller. But the tenant is questioning this document by contending
that it is sham and nominal.
14. I do not approve of the conduct of the tenant in questioning the sale deed dated
25.3.1996 on so many technicalities. As rightly pointed out by the learned senior counsel for
the landlord it is not for the tenant to question the bona fide or genuineness of the sale deed in
so far as his previous owner is not demanding any rent from him even after the execution of
the sale deed. It is also not the case of the tenant that the previous owner Anthonysamy or his
brother Paul Irudayaraj are demanding rent from him even after the execution of the sale
deed. In fact, the tenant was depositing the rent in RCOP No.13/1995 in which both
Anthonysamy and Paul Irudhayaraj are respondents. The main contention of the tenant is
that his owner Anthonysamy did not accept him as his tenant in RCOP No.13/1995 and
therefore when Anthonysamy himself stated that there is no landlord-tenant relationship,
there cannot be any landlord-tenant relationship between the present landlord and the tenant.
15. I am not able to accept this vacillating stand of the tenant to suit his own
convenience. First of all, it is his case that he is a tenant under Anthonysamy and that is why
he filed RCOP No.13/1995 for depositing the rent against Anthonysamy and his brother Paul
Irudhayaraj. His stand that he is a tenant under Anthonysamy through Paul Irudhayaraj was
accepted and he was permitted to deposit the rent even though Anthonysamy questioned his
tenancy. Now when the said Anthonysamy sold the property to the present landlord, it is not
for the tenant to contend that as Anthonysamy himself did not accept him as tenant, the
present landlord could never be his landlord. This contention is fallacious and cannot be
accepted at all due to the very conduct of the tenant. Therefore, I do not find any illegality in
the findings of the rent controller in RCOP No.l0/1996, which was upheld by the appellate
authority in RCA No.12/1997 by holding that the landlord is competent to file the eviction
petition against the tenant.
16. Similarly there is no real infirmity in the findings of both the authorities below in
RCOP No.10/1996 and RCA No.12/1997 that the landlord has proved his bona fide in
requiring the tenanted premises for his own occupation.
 17. Therefore, I do not find any merits in CRP (NPD) No.2102/1999 and hence the
same is dismissed. No costs.
18. As his previous eviction petition was dismissed on the technical ground even
though there was a finding in his favour with regard to bona fide requirement, the landlord
filed RCOP No.32/1997 on the ground that he required the property for his own use and
occupation. This was also resisted by the tenant by contending that as there was no landlord-
tenant relationship between Anthonysamy and himself as per the statement of the said
Anthonysamy, there cannot be any landlord-tenant relationship between him and the present
owner. The rent controller after considering the fact that tenant himself admitted that he is a
tenant under Anthonysamy through Paul Irududhayaraj in RCOP No.13/1995 and also the
fact that the tenant himself filed a suit in O.S.No.745/1995 for a declaration to declare that he
is a tenant in the property who is entitled to the benefits of the Tamil Nadu Buildings (Lease
& Rent Control) Act, 1960, in which not only Anthonysamy and Paul Irudhayaraj were
shown as defendants but also the present owner. In the plaint filed in O.S.No.745/95, it is
admitted by the tenant that Anthonysamy was the owner of the property under his occupation
and he was inducted as a tenant by Paul Irudhayaraj. The trial Court passed a judgment and
decree by declaring that the plaintiff is a tenant and the present landlord is the owner of the
property now and, therefore, a decree of prohibitory injunction was granted against the
present landlord alone. Considering the rent control proceeding in RCOP No.13/1995, and
the Civil Court proceedings in O.S.No.745/95, both initiated by the tenant, the rent controller
came to the conclusion that there is a landlord-tenant relationship. Apart from that the rent
controller considered the previous RCOP filed in RCOP No.10/1996 and found that the very
same question was already decided in RCOP No.10/1996 and the same would operate as res
judicata. Insofar as the question of bona fide requirement is concerned the rent controller
has gone into the merits on the basis of the evidence let in and held that the landlord’s
requirement is bona fide.
19. The appellate authority after re-evaluating the evidence concurred with the findings
of the rent controller. The appellate authority has also considered the rent control
proceedings in RCOP No.13/1995 and the Civil Court findings in O.S.No.745/1995 found
that there is landlord-tenant relationship between the parties. The appellate authority has also
considered the previous rent control proceedings in RCOP No.10/1996 and held that the
findings would operate as res judicata insofar as questioning the sale deed is concerned.
20. A perusal of the orders of the authorities below would clearly establish that they
have applied their mind independently and found that there is a landlord-tenant relationship.
No doubt they have referred to previous rent control proceedings, but they have not passed
orders only on the basis of the previous findings. I have already held that the findings given
by the authorities in the previous rent control proceedings are valid in
CRP.NPD.No.2102/1999. Therefore, the same could be relied upon by the authorities in the
later rent control proceedings. Even assuming that the previous findings are not binding on
the authorities in the later proceedings, still I find that the authorities have applied their mind
independently to come to the conclusion without being over-influenced by the previous
findings.
21. No doubt it is true that when there is a bona fide dispute with regard to title, then
the landlord has to approach only the Civil Court and not the rent control Court. In the
present case, I do not find any bona fide dispute regarding title and therefore the landlord
need not approach the Civil Court for getting possession of the property. As per the
proviso given under Section 10(1) of the Act, 1960 where the tenant denies the title of the
landlord, the controller shall decide whether the denial is bona fide and if he records a
finding to that effect, the landlord shall be entitled to sue for eviction of a tenant in a Civil
Court. But if the court finds the denial is not bona fide then it can very well proceed with the
matter and pass orders on merits. As already decided by me there are enough materials to
show that the denial of the present landlord’s title by the tenant is not bona fide and therefore,
the tenant cannot contend that the present landlord should approach only the Civil Court.
22. The next contention of the tenant that there is no proper pleading in the RCOP
No.32/1997 and in the absence of proper and necessary pleadings, the RCOP ought to have
been dismissed. It is specifically pointed out by the learned counsel for the tenant that the
landlord did not plead that he is not having any other residential property in the same locality
and, therefore, failure to plead this particular statement is fatal to his eviction petition.
23. I am unable to accept this submission of the learned counsel for the tenant.
First of all, this issue was neither raised before the rent controller nor before the appellate
authority. Further in RCOP No.32/1997 it was specifically pleaded by the landlord that the
property itself was purchased for the specific purpose of his own occupation and use as he is
not having a separate residential house. He further pleaded that already he filed a RCOP
No.10/1996 for the purpose of requiring the building for his own use. Further in his
evidence, the landlord deposed that he purchased the property for the purpose of his own use
as he did not have a separate residential house. In the previous RCOP i.e., RCOP
No.10/1996, the landlord has specifically pleaded that he is not having any other residential
house other than the petition house. In such circumstances, it cannot be said that there are
no proper pleadings in the eviction petition.
24. It is no doubt true that this Court in the decision reported in 1993 (1) L.W.356
(cited supra) held that absence of necessary pleadings to the effect that the landlord’s
son for whom the building is required does not own any non-residential premises of his own
is fatal and the order of eviction has to be set aside.
25. In that case, there is no averment to the effect that the son of the landlord does not
own any non-residential premises of his own to invoke Section 10 (3) (a) (iii) of the Act and
even in the evidence the son has merely stated that he has no other place and he has no other
shop except the suit shop. Only in that context the above decision has been rendered by
this Court. The facts in the present case are different and, therefore, the learned counsel for
the tenant cannot draw any support from the above decision to contend that the RCOP is to
be dismissed for lack of necessary pleadings.
26. In the result, I do not find any ground to interfere with the concurrent findings of
the authorities below by exercising the powers under Section 25 of the Act, 1960.
27. Hence, CRP.NPD.No.3871/2001 is also dismissed. No costs.
28. In the result, both the civil revision petitions are dismissed. No costs.
At the time of pronouncement of the order today, the learned counsel appearing for the
petitioner-tenant in both the C.R.Ps., seeks six months time to vacate and hand over vacant
possession of the property to the respondent-landlord. But the learned counsel appearing
for the respondent has serious objection for granting time to the petitioner-tenant.
2. However, considering the facts and circumstances of the case, I am of the view that
three months time could be given to the petitioner-tenant to vacate and hand over vacant
possession.
3. Therefore, the petitioner-tenant is directed to file an affidavit within two weeks
from today before this Court undertaking to vacate and hand over vacant possession of the
property in question to the respondent-landlord within three months from today after duly
serving a copy to the learned counsel for the respondent.
4. It is made clear that if no such affidavit is filed within the time stipulated, the
respondent is at liberty to pursue the action in the appropriate forum for evicting the tenant.
Petitions dismissed.

[2007 (2) TNCJ 346 (Mad)]

MADRAS HIGH COURT
BEFORE:
N. PAUL VASANTHAKUMAR, J.
METROPOLITAN TRANSPORT CORPORATION LTD.
REP. BY ITS MANAGING DIRECTOR AYANAVARAM ...Appellant
Versus
V.R. GOPAL ....Respondent
[C.M.A. No. 1878 of 1999 and Cross-objection No. 68 of 2000, decided on 15 th June,
2007]
Motor Vehicles Act, 1988—Section 173—Appeal—Cross-objection—
Compensation of Rs. 3,26,440/- with 12% interest awarded—Legality of—Accident
occurred only due to the rash and negligent driving of the driver of the bus—Finding
based on evidence—Not perverse—Quantum of compensation—Claimant sustained
85% of the disability—Awarded Rs. 85,000/- for the disability—Actual medical
expenses to the tune of Rs. 1,87,440/- awarded—But nothing awarded towards future
medical expenses Rs. 75,000/- awarded for future medical expenses—Claimant is still
suffering due to pain—Amount of Rs. 5,000/- enhanced to Rs. 10,000/- for pain and
sufferings—Amount of Rs. 2,000/- awarded towards transportation enhanced to Rs.
5,000/- Extra nourishment amount enhanced to Rs. 10,000/- in place of Rs. 2,000/- No
compensation under the head loss of amenities awarded—Claimant at the age of 56
years—Sustained serious infirmities—Entitled to get loss of amenities to the tune of Rs.
50,000/-—Total compensation of Rs. 5,12,440/- allowed—Rate of interest reduced to 9%
from 12% from the date of claim petition—Cross-objection allowed partly—Appeal
disposed off. (Paras 8, 9, 11, 13 to 19)
Case law.—1982 ACJ 491; 2005 (5) CTC 745; 2006 (4) CTC 433: 2006 (3) LW 1025;
(2003) 2 SCC 274; (1995) 1 SCC 551; (2003) 7 SCC 197; 2000 (1) Supreme 5; (2002) 6
SCC 281.
Counsel.—Mr. J. Mahalingam, for the appellant in CMA. 1878/1999 & respondent in
Cross-Objection; Mr. K.V. Subramani, Senior Counsel for Mr. N. Jothi, for the respondent in
CMA. 1878/1999 & Cross-Objector.
JUDGMENT
N. PAUL VASANTHA KUMAR, J.—C.M.A.No.1878 of 1999 is preferred by the
Metropolitan Transport Corporation challenging the order of the Motor Accident Claims
Tribunal dated 26.2.1999 made in M.C.O.P.No.3460 of 1996 insofar as the awarding
Rs.3,26,440/- as compensation to the claimant. The claimant has filed Cross- Objection
68 of 2000 for the disallowed portion of his original claim of Rs.7,00,000/-.
2. The claim petition was filed by the injured claimant alleging that on 23.8.1996 at
2.45 p.m. when he was riding cycle in the junction of Bricklin road and Purasawalkam
High Road from north to south, the bus belonging to the Transport Corporation bearing
registration No.TN-02-N-0295, driven in a rash and negligent manner by the driver of the
Transport Corporation bus, dashed against him and he was thrown five feet away and in the
said accident, he sustained grievous injuries and that his cycle was also damaged.
Hence, the claimant has filed the claim petition claiming compensation of Rs.7,00,000/-.
3. The Tribunal, on the basis of the FIR registered against the driver of the Bus and
after analysing the evidence of the driver and conductor of the bus, who were examined as
RWs.1 and 2, the report of the Motor Vehicle Inspector and the sketch prepared by the Police
Ex.P-14, came to the conclusion that the Bus hit against the claimant from behind and
held that the accident had occurred only due to the rash and negligent driving of the Driver of
the Transport Bus.
4. Further, the Tribunal, on the basis of Ex.P-13, which was spoken to by PW-2, found
that the claimant sustained fracture of bones in the front side hip, consequent to which the
urinary tube was damaged and alternative urinary track was fixed and due to the bone
fracture, plate is fixed in the right side hip. It is also found that his kidney is also damaged
and due to the same the claimant could not sit in a place for long time and is having
complication in excretory system, due to which, once in every two weeks dilatation is to be
conducted. The doctor assessed the disability as 85%. The claimant was admitted in Aysha
Hospital, Chennai-10, from 23.8.1996 to 24.10.1996 as inpatient as could be seen from Ex.P-
1 and from 14.3.1997 to 10.4.1997 as could be seen from Ex.P-2. The Tribunal also found
that separate tube is fixed through which only the claimant is passing urine and,
therefore, the claimant requires continuous treatment. After giving such a finding the
Tribunal awarded compensation of Rs.80,000/- towards partial disability and for loss of
earning capacity and Rs.1,87,440/- towards medical expenses already incurred as per
Exs.P-3 to P-6. The Tribunal also observed that due to the accident the claimant voluntarily
retired from service two years prior to his normal date of retirement as per Ex.P-9, for which
a sum of Rs.50,000/- is awarded on the basis of Ex.P-11. Further, a sum of Rs.5,000/-
towards pain and suffering and Rs.2,000/- each towards transportation and nourishment is
also awarded by the Tribunal. Thus, the Tribunal awarded a total sum of Rs.3,26,440/- with
12% interest.
5. The learned counsel appearing for the appellant submitted that the Tribunal
erroneously found that the accident had occurred due to the negligent driving of the bus and
the Tribunal ought to have held that due to the contributory negligence of the claimant as
well as the driver of the bus the accident had occurred. Learned counsel also submitted
that the quantum of Rs.80,000/- awarded towards loss of earning capacity is not justified
because the petitioner prematurely retired and towards that count, a sum of Rs.50,000/- is
separately awarded. The learned counsel also submitted that the award of 12% interest is on
the higher side.
6. The learned senior counsel appearing for the claimant/ cross-objector on the basis
of the grounds raised in the cross- objection submitted that the findings given as to how
the accident had occurred is legal and based on the oral and documentary evidence and
having found that the accident had occurred due to the rash and negligent driving of the
driver of the bus, the Tribunal ought to have determined the amount of compensation which
is just and proper as per Section 168 of the Motor Vehicles Act. The learned counsel also
read out paragraph 7 of the award where the Tribunal narrated the hardships faced by the
injured claimant due to the accident which will be a continuing painful disability requiring
continuous medical treatment for which no amount is awarded. The learned senior counsel
also submitted that no amount is awarded to compensate the loss of amenities in life and
prayed for enhancing the compensation to that of Rs.7,00,000/- as claimed in the claim
petition.
7. I have considered the rival submissions of the learned counsel for the appellant as
well as respondent/cross-objector.
8. A criminal complaint was admittedly given against the driver of the bus viz.,
Pushparaj and after investigation, the Police filed charge-sheet in C.C.No.8247 of 1996
before the Chief Metropolitan Magistrate, Egmore, for the offences under section 184 of the
Motor Vehicles Act and Section 338, IPC. Based on the criminal complaint, the Police
inspected the scene of occurrence and prepared observation mahazar and sketch Ex.P-14. On
the side of the Transport Corporation, the Driver and Conductor were examined as RW-1
and RW-2. The Tribunal found that the driver of the bus RW-1 deposed during cross-
examination that he noticed the accident through the side mirror. The conductor of the bus
RW-2 deposed that he has not seen the accident directly. Therefore, the Tribunal disbelieved
the versions of RW-1 and RW-2 and relied on the observation mahazar and sketch Ex.P-14.
The Tribunal also gave a specific finding that the Police independently enquired into the
matter and in the report it is stated that the injured claimant was riding the cycle in front of
the bus and the bus hit against the injured. The Tribunal came to the conclusion that the
accident had occurred only due to the rash and negligent driving of the driver of the bus.
There is no error in the said finding and the same is hereby confirmed.
9. Insofar as the quantum of compensation is concerned, PW-2 doctor gave evidence
based on the medical certificate Ex.P-13 and he has narrated the difficulties/sufferings faced
by the injured claimant in excretion also. It is also stated by the doctor that the claimant is
still suffering and he is passing urine through tube and once in every two weeks he has to
take dilatation and for future treatments compensation is required to be ordered.
10. A Division Bench of the Gujarat High Court in the decision reported in 1982 ACJ
491 (Chandrashekhar Madhusudan v. Subas Shankar Shirke and others) considered similar
type of disability and explained the same in paragraph 13, which reads thus:
“13. The evidence clearly establishes, however, that the serious internal injury
sustained by the appellant has vitally affected the functioning of one of his
excretory systems. The rupture of urethra, which required urgent surgical
intervention and which has left a stricture at the point of rupture, has landed the
appellant in a physical condition which will require periodical medical
intervention to ensure proper functioning of the urinary system. The medical
evidence establishes that the appellant will have to undergo dilatation at least once
a month for a very long time or perhaps for the rest of his life and that the failure to
take periodical dilatation might create difficulty in passing urine and give rise to
complications including dribbling of urine. The evidence establishes that within a
period of about one year between the date of his discharge from the hospital and
the date of trial, the appellant had taken dilatation six times. Dilatation, as is well-
known, is a painful process. The medical evidence herein establishes that it is
usually given under local anaesthesia. Besides, it often times leads to infection of
the genito-urinary track and to recurrent attacks of cystitis, etc. In some cases,
 such infection, if uncontrolled, may travel upto the kidney and, in turn, it may lead
to the development of renal failure in course of time (see the Medical Assessment
of Injuries for Legal Purposes by Arnold Mann, 3rd Edn., 1979, page 119).
Though Dr. Thakkar has not deposed about these likely complications, the
possibility of their occurrence cannot be ignored, having regard to the prognosis
based on the day to day experience of life as reflected in the commentaries in the
standard text-books. The post-accident physical condition of the appellant,
therefore, is such that besides leading to frequent absences from work and
abstinence from leisure activities, it is bound to generate in him a fear of future
incapacity as to health or uncertainty of life and a feeling of despondency and
remorse and embarrassment. The pain and suffering which the appellant must
have felt on receiving the injury and in the course of the medical treatment
including the surgical operation rendered necessary by the injury have also not
ended. The appellant will be subjected to physical pain and discomfort and
suffering from time to time for the rest of his life. It cannot be overlooked also that
if for reasons beyond his control the appellant is unable to take timely dilatations,
the symptom of dribbling of urine would manifest itself. Indeed, the appellant
has deposed that this trouble occasionally manifests itself and that that causes
him embarrassment on account of the ridicule to which he is subjected by the
onlookers….”
Similar sufferings were experienced by the claimant and according to the doctor
PW-2, he continue to undergo similar sufferings in future also. The said fact is not
disputed by the learned counsel for the Transport Corporation. Hence, it has to be
ascertained, whether the Tribunal has awarded just and proper compensation to the injured
claimant and whether the cross-objection filed by the claimant is to be considered.
11. The facts about the injuries suffered by the claimant, disability, the
hardships/sufferings faced by the claimant are not in dispute. The claimant sustained 85% of
the disability is not disputed. The Tribunal awarded Rs.80,000/- for 85% disability. As held
by the Division Bench of this Court in the decision reported in 2005 (5) CTC 745
(M.Bhagavathy v. Thiruvalluvar Transport Corporation Ltd) for the disability of 85%, the
injured claimant is entitled to get Rs.85,000/- as compensation.
12. Having allowed the said amount, the Tribunal is not justified in awarding
compensation of Rs.50,000/- under the head future loss of income, as held by the Full Bench
of this Court in the decision reported in 2006 (4) CTC 433 : 2006 (3) LW 1025 ( Cholan
Roadways Corporation Ltd. v. Ahmed Thambi & 6 others).
13. The Tribunal awarded a sum of Rs.1,87,440/-, the actual medical expenses
incurred. But no amount is awarded towards future medical expenses. According to the
evidence of the doctor, the claimant has to undergo medical treatment continuously. The
Honourable Supreme Court in the decision reported in (2003) 2 SCC 274 (Nagappa v.
Gurudayal Singh) held that compensation should be awarded for future medical expenses
also. Taking note of the provisions contained in the Motor Vehicles Act that after final
award is passed, fresh award cannot be passed or previous award cannot be reviewed when
the medical expenses are incurred after finalisation of the compensation proceedings, in
paragraph 23 of the judgment, the Honourable Supreme Court held as follows:
“23. However, it is to be clearly understood that the M.V. Act does not provide for
passing of further award after the final award is passed. Therefore, in a case where
injury to a victim requires periodical medical expenses, fresh award cannot be
 passed or previous award cannot be reviewed when the medical expenses are
incurred after finalisation of the compensation proceedings. Hence, the only
alternative is that at the time of passing of final award, the Tribunal/Court should
consider such eventuality and fix compensation accordingly. No one can suggest
that it is improper to take into account expenditure genuinely and reasonably
required to be incurred for future medical expenses. Future medical expenses
required to be incurred can be determined only on the basis of fair guesswork after
taking into account increase in the cost of medical treatment.”
Applying the above principle laid down by the Honourable Supreme Court in the
above decision and having regard to the fact that the Tribunal has not awarded any amount
towards future medical expenses, I am of the opinion that an award of a sum of Rs.75,000/-
would be just and proper towards future medical expenses.
14. The Tribunal awarded a sum of Rs.5,000/- towards pain and suffering. The same
is absolutely without any basis as the claimant had underwent operations five times and he
was treated as inpatient twice for more than three months and that there is likelihood of
sufferings in future also. Even now the claimant is suffering due to pain. Hence for the pain
and sufferings an amount of Rs.1,00,000/- is ordered as against the award of Rs.5,000/-
awarded by the Tribunal.
15. The amount of Rs.2,000/- awarded under the head transportation is too low and the
same is enhanced to Rs.5,000/-.Likewise, towards extra nourishment, the award of Rs.2,000/-
is enhanced to Rs.10,000/-.
16. The Honourable Supreme Court in the decision reported in (1995) 1 SCC 551
(R.D.Hattangadi v. Pest Control (India) Pvt. Ltd.) in paragraph 9 gave guidelines to award
compensation under different heads, which reads as follows:
“9. Broadly speaking while fixing an amount of compensation payable to a victim
of an accident, the damages have to be assessed separately as pecuniary damages
and special damages. Pecuniary damages are those which the victim has actually
incurred and which are capable of being calculated in terms of money; whereas
non-pecuniary damages are those which are incapable of being assessed by
arithmetical calculations. In order to appreciate two concepts pecuniary
damages may include expenses incurred by the claimant: (i) medical attendance;
(ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far
non-pecuniary damages are concerned, they may include (i) damages for mental
and physical shock, pain and suffering, already suffered or likely to be
suffered in future; (ii) damages to compensate for the loss of amenities of life
which may include a variety of matters i.e. on account of injury the claimant may
not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e.,
on account of injury the normal longevity of the person concerned is shortened;
(iv) inconvenience, hardship, discomfort, disappointment, frustration and mental
stress in life.”
The said judgment is followed by the Honourable Supreme Court in the subsequent
decision reported in (2003) 7 SCC 197 (Divisional Controller, KSRTC v. Mahadeva Shetty),
wherein paragraph 18 reads thus:
“18. A person not only suffers injuries on account of accident but also suffers in
mind and body on account of the accident throughout his life and a feeling is
developed that he is no more a normal man and cannot enjoy the amenities of life
 as another normal person can. While fixing compensation for pain and suffering as
also for loss of amenities of life, features like his age, marital status and unusual
deprivation he has undertaken in his life have to be reckoned.”
From the above decisions, it is clear that it is the fit case where compensation under
the head loss of amenities in life can be ordered, for which no amount is awarded by the
Tribunal. The claimant at the age of 56 years, sustained serious infirmities and for the loss of
amenities, he is entitled to get just compensation for which I am inclined to award a sum of
Rs.50,000/-.
17. Thus, the claimant/cross-objector is entitled to a total compensation of
Rs.5,12,440/- under the following heads:
85% Permanent Disability .. Rs. 85,000/-
Medical Expenses .. Rs.1,87,440/-
Future Medical Expenses .. Rs. 75,000/-
Pain and Sufferings .. Rs.1,00,000/-
Transportation Expenses .. Rs. 5,000/-
Extra Nourishment .. Rs. 10,000/-
Loss of Amenities in Life .. Rs. 50,000/-
————————————
Total .. Rs.5,12,440/-
————————————
18. With regard to the contention of the learned counsel for the Transport Corporation
that the interest awarded by the Tribunal is excessive, in view of pronouncement of the
Honourable Supreme Court in Smt. Kausnuma Begum and others v. The New India
Assurance Co. Ltd. and others, 2000 (1) Supreme 5 and United India Insurance Co. Ltd. and
others v. Patricia Jean Mahajan and others (2002) 6 SCC 281, I am inclined to reduce the
rate of interest to 9% from 12% per annum from the date of claim petition.
19. In the result, the civil miscellaneous appeal is disposed off and the award of the
Tribunal is modified o the above extent. The cross-objection No.68 of 2000 filed by the
injured claimant is allowed in part by enhancing the compensation amount to Rs.5,12,440/-
with 9% interest per annum from the date of the claim petition instead of the award of
Rs.3,26,440/- with 12% per annum, by the Tribunal. No costs.
Appeal disposed off.

[2007 (2) TNCJ 355 (Mad)]

MADRAS HIGH COURT
BEFORE:
N. PAUL VASANTHAKUMAR, J.
CHOKKAPPAN ....Appellant
Versus
SUBRAMANI AND OTHERS ....Respondents
[C.M.A. No. 183 of 2007 and M.P. No. 1 of 2007, decided on 15 June, 2007]
th

(A) Remand order—Challenged in appeal—Non-compliance of the direction of

the High Court by the Advocate Commissioner regarding measuring of the suit
properties with the help of a qualified surveyor properties of defendant not
measured—Appellate Court rightly set aside the judgment and decree of the trial
Court based on defective report of Advocate Commissioner.
(Paras 13 and 14)
(B) Civil Procedure Code, 1908—Order XLI, Rule 23—Power of remand—
Exercise of—Sufficient reasons given—No interference warranted.
(Paras 18 to 21)
Case law.—2005 (1) CTC 107; (2002) SCC 686.
Counsel.—Mr. A. V. Arun, for the appellant; Mr. M.A.P. Thangavel, for the
respondent.
JUDGMENT
N. PAUL VASANTHA KUMAR, J.—This civil miscellaneous appeal is preferred against
the fair and decretal order of remand dated 19.10.2006 made in A.S.No.5 of 2006 on the file
of Principal Sub-Judge, Gobichettipalayam, reversing the judgment and decree
dated 10.3.2005 made in O.S.No.100 of 1995 on the file of the District Munsif,
Sathyamangalam.
2. The appellant herein, who is plaintiff in O.S.No.100 of 1995, filed the suit for
declaration of title to the suit property and to restrain the defendants by means of a
permanent injunction from disturbing the peaceful possession and enjoyment of the suit
property and by means of a mandatory injunction to remove the encroachment of 42.8 sq.ft.
in the first item and 235.3 sq.ft. in the second item and to fence the building with the above
extent and to deliver possession of the above portion after removing the
encroachment.
3. According to the plaintiff, the suit property in both the items 1 and 2 were possessed
by one Annamalai Mudali and Nallaiya Mudali, the predecessors of the plaintiff, who were in
possession and enjoyment of the properties and thereafter plaintiff was in possession and
enjoyment of the properties. The plaintiff renovated the house in item No.1 and is residing
there. Plaintiff and his predecessors are using item No.2 as pavadi for doing their weaving
invocation. Plaintiff obtained electric service connection and is paying taxes to the
suit properties. The Government issued patta in respect of item No.1 and the suit properties
were in possession of the predecessors for a long time and, therefore, plaintiff perfected title
over the said properties. According to the plaintiff, the defendants have no right or title in the
suit properties and the defendants’ property is situated in the east of the suit property and due
to the enmity the defendants disturbed the peaceful possession and enjoyment of the suit
properties and attempting to encroach the same. During pendency of the suit, the defendants
encroached a portion of 42.8 sq.ft. in item No.1 and 235.3 sq.ft in item No.2 and erected
fencing and made construction without any right or title. Hence, the encroachment is
necessarily to be removed and the plaintiff is entitled to recover possession of the same.
Earlier attempts made to trespass into the suit properties were prevented. On the basis of the
said averments the plaintiff filed the suit to declare the title to the suit properties and to grant
consequential permanent injunction and mandatory injunction to remove the encroachment
and recover possession as stated supra.
4. The case of the defendants is that the plaintiff compelled the defendants to purchase
the neighbouring property and the defendants having purchased the same and after
purchase, started constructing house and only to prevent the construction of house the suit is
filed on false averments. The allegation of encroachment is denied. The allegation that
during the pendency of the suit encroachment was made and defendants erected fencing, was
also denied. It is specifically stated in the written statement that the defendants erected
construction only in their property and the plaintiff has no right or title or possession over the
properties. The fencing is old and the Advocate Commissioner also noted the old foundation
in the place. No objection was filed to the Advocate Commissioner’s report by the plaintiff.
Defendants and their predecessors are entitled to possession and enjoyment for over 50
years and they claimed that they have perfected title by adverse possession. Ultimately it is
stated that the plaintiff has no right to seek removal of encroachment and recovery of
possession and that the measurement and survey number is also not correct.
5. On the said pleadings the trial Court framed issues as to whether the plaintiff is
entitled to declaration of title and permanent injunction as sought for and whether the
plaintiff is entitled to mandatory injunction and recovery of possession as prayed for.
6. On the side of the plaintiff, plaintiff was examined as PW-1 and plaintiff’s brother
Swaminathan was examined as PW-2 and his paternal uncle’s son Thirumoorthy was
examined as PW-3. 15 documents were marked on the side of the plaintiff. Ex.A-1 and
A-2 are sale deeds dated 16.1.1908; Exs.A-3 and A-4 are sale deeds dated 3.7.1916; Ex.A-5
is patta; ExA-6 is survey notice; Ex.A-7, A-12 to A-15 are the receipts issued in the name of
the plaintiff for electricity consumption; Ex.A-8 and A-11 are kist receipts and Ex.A-9 and A-
10 are house tax receipts issued in the name of the plaintiff. Second defendant was examined
as DW-1 and the vendor of the defendant was examined as DW-2. Ex.B-1 certified copy of
the petition and order in E.P.No.17 of 2000 in O.S.No.15 of 1995 on the file of District
Munsif Court, Gobichettipalayam, was marked; Ex.B-2 is the sale deed executed in favour of
the sons of Marappa Mudali; and Ex.B-3 is sale deed dated 21.11.1960 executed in favour of
Nanjappa Mudali. Exs.C-1, C-3, C-7 are the Commissioner’s report, C-2, C-4, C-8 are
Commissioner’s plan. Commissioner’s additional reports are marked as Ex.C-6 and Ex.C-
10. Exs.C-5 and C-9 are objections filed to the Commissioner’s report.
7. The trial Court on consideration of the documents, depositions as well as
Commissioner’s report, found that there is absolutely no acceptable evidence to establish
perfection of title by adverse possession as claimed by the defendants over the disputed
property. The claim of the defendants that they had not encroached and it was made only by
their predecessors is also not established. Ultimately the suit was decreed as prayed for by
granting declaration of title and consequential permanent injunction and mandatory
injunction to remove the encroachment as found by the Commissioner in Exs. C-3 and C-4.
8. Aggrieved by the said decree and judgment the defendants filed A.S.No.5 of 2006
and the appellate Court set aside the said judgment and decree of the trial Court on the
ground that the Advocate Commissioner has not measured properties of the plaintiff and
defendants as per the order of this Court made in C.R.P.No.125 of 2002 dated 3.10.2002
wherein this Court taking note of the controversy in the suit and in order to put an end to
the entire controversy, directed the trial Court to appoint an Advocate Commissioner to
measure the suit properties with the help of a qualified surveyor and file a report with plan. It
was further ordered in the said revision petition that the Advocate Commissioner shall also be
directed to indicate whether there is any overlapping of the property of the plaintiff and
defendants, which would enable the Court to render proper findings. On the basis of the
non-compliance of the said direction the appellate Court after setting aside the order of the
Trial Court remanded the matter to the trial Court to appoint an Advocate Commissioner as
directed by this Court and get a report and to decide the matter afresh based on the Advocate
Commissioner’s report and plan. Aggrieved by the said remand order, this civil
miscellaneous appeal is filed contending that the Advocate Commissioner in his report stated
that the defendants encroached upon both the items of the suit properties and the defendants’
property was not measured as they raised objections.
9. The learned counsel for the appellant in his argument admitted that the direction
given by this Court in the above referred revision petition is not complied with by the
Advocate Commissioner. However, he argued that due to the fact that the defendants
objected measurement of their properties, the Advocate Commissioner could not measure
their properties. The learned counsel also submitted that even if the Advocate
Commissioner’s report is found inadequate or non-compliance of earlier direction of this
Court, the appellate Court itself could have appointed the Advocate Commissioner and based
on his report the appeal could have been decided on merits without remanding the matter.
10. The learned counsel appearing for the respondents submitted that the respondents
were ready and willing to measure their properties through the Advocate Commissioner as
directed by this Court and non-compliance of the directions by the Advocate
Commissioner in submitting his plan and report without measuring the properties of the
defendants, ought not to have been relied upon by the trial Court to decree the suit in favour
of the plaintiff and therefore, the appellate Court was justified in remanding the matter to the
trial Court for getting a report from the Advocate Commissioner after measuring the
properties of the defendants also, as directed by this Court and to decide the suit afresh.
11. I have considered the rival submissions of the learned counsel for the appellant
as well as respondents.
12. The point in issue is whether there was any encroachment by the defendants in the
plaintiff’s suit property in item Nos.1 and 2.
13. In an earlier occasion, between the same parties in C.R.P.No.125 of 2002 dated
3.10.2002, this Court gave specific direction to the trial Court to appoint an Advocate
Commissioner to measure the suit properties and also the properties of the defendants
with the help of a qualified surveyor and file a report with plan. For issuing such a direction
this Court gave reasons also. The said direction and order passed by this Court has become
final. Admittedly the Advocate Commissioner appointed by the trial Court after the order of
this Court, has not measured the properties of the defendants. The report of the Advocate
Commissioner states that on 27.6.2004 at 10.00 a.m. with the help of the Taluk Surveyor, he
measured the suit properties. Nowhere in the said report it is stated that the defendants
objected the measurement of their properties and therefore he was prevented from measuring
the properties of the defendants. Hence, the contention of the learned counsel for the
appellant that due to the objections raised by the defendants in measuring the defendants’
property the Advocate Commissioner could not measure the defendants’ properties is
unsustainable and is contrary to the report of the Advocate Commissioner.
14. Taking note of the said factual aspect and having regard to the fact that the order of
this Court is not complied with by the Advocate Commissioner as directed by this Court,
the Appellate Court is justified in setting aside the judgment and decree passed by the trial
Court based on the defective report by remanding the matter to the trial Court to fully comply
with the directions issued by this Court by getting report from the Advocate Commissioner as
directed in revision petition and decide the issue afresh.
 15. The power of remanding the matter to the trial Court by the Appellate Court under
Order XLI, Rule 23 was considered by a Division Bench of this Court in the decision
reported in 2005 (1) CTC 107 (V.Munusamy v. M.Suguna). In the said decision it is held that
unless there are compelling circumstances in making the order of remand, the appellate Court
shall not pass orders of remand. The compelling reasons to order remand is stated by the
appellate Court in paragraph 10 of the judgment by the appellate Court.
16. The contention of the appellant that the appellate Court itself without remanding
the matter could have got fresh report from the Advocate Commissioner and decided the
matter, is unsustainable because of the fact that in CRP No.125 of 2002, a direction was
issued to the trial Court to do the same. If such an argument is accepted, it will be virtually
giving liberty to the trial Court to ignore the directions given by the High Court and the same
is impermissible. Thus there is a special circumstance in this case for ordering remand by the
appellate Court as held by the Division Bench in the judgment above cited.
17. The learned counsel for the appellant also submitted that as per order XLI, Rule 23
or Rule 23(a) or Rule 25, an unwarranted order of remand cannot be made and in support of
his contention he cited a decision of the Honourable Supreme Court reported in (2002) 2
SCC 686 (P.Purushottam Reddy v. Pratap Steels Ltd). In the said judgment in paragraph 10
it is stated that an unwarranted order of remand gives the litigation an undeserved lease of life
and therefore, must be avoided. The said judgment nowhere prohibits the appellate
Court from remanding the matters for valid and sufficient reasons. The Honourable Supreme
Court only cautioned the appellate Court not to pass remand orders on flimsy grounds.
18. Here in this case, the order of this Court in revision has not been followed by the
trial Court while deciding the issue as to whether there was an encroachment by the
defendants in the suit properties or not by measuring the properties of the defendants also.
Had a report is obtained as ordered by this Court, the Court would have been armed with all
the facts to decide the issue in a just and proper manner. Further, the trial Court is bound to
comply with the order of this Court made in the revision petition.
19. The contention of the learned counsel for the appellant that the appellate Court
itself could have decided the issue after getting report from the Advocate Commissioner,
cannot be accepted in view of the fact that sufficient opportunity to all the parties concerned
should be given and objections to the Commissioner’s report, if any, has to be called for and
after that only fresh decision has to be taken by the trial Court. If the appellate Court instead
of remanding the matter, called for fresh report from the Commissioner and decided the
matter, in effect, the same will be in violation of the earlier order of this Court. The lower
appellate Court also gave sufficient reasons for remanding the matter, which does not call for
any interference.
20. The learned counsel for the appellant submitted that the suit is of the year 1995 and
by allowing the remand to stand it will amount to prolonging the litigation. The same can be
remedied by fixing time limit to dispose of the suit.
21. Taking note of the submission and having regard to the fact that the suit is of the
year 1995, the trial Court is directed to dispose of O.S.No.100 of 1995 within six months
from the date of receipt of copy of this order. There is no merit in the civil miscellaneous
petition and the same is dismissed with the above direction. No costs.
Petition dismissed.
 [2007 (2) TNCJ 361(Mad)]
MADRAS HIGH COURT
BEFORE:
V. DHANAPALAN, J.
SUN T.V. LIMITED ...Petitioner
Versus
TATA SKY LTD. AND ANOTHER ...Respondents
[W.P. Nos. 12826 and 12827 of 2007 and M.P. Nos. 1 and 2 of 2007, decided on 5 th July,
2007]
(A) Constitution of India, 1950—Article 226—Writ jurisdiction—Exercise of—
Territorial jurisdiction—Even if a fraction of cause of action has arisen within the
territorial jurisdiction of a Court—Sufficient for the Court to entertain a petition—
Reach of package offered have a nation-wide coverage—Meeting held in Chennai to
come to an amicable settlement—Petitioner having its registered office in Chennai and
carrying on its business in Chennai—Part of cause of action has certainly arisen.
(Paras 22 and 23)
(B) Practice and procedure—Main relief cannot be granted at the interim stage—
Granting of—Tantamounts to the effect of granting a pre-trial decree—Order of
Tribunal directing Sun T.V. to make available signals of all its Channels to TATA on a-
la-carte basis at 50% of its declared rates cannot be sustained—Quashed.
(Para 26)
(C) Practice and procedure—Tribunal tried its level best to bring the parties to
an amicable settlement—But due to the diversified stand of the parties, there was
no other option except to adjourn the matter—Matter adjourned—Interim relief
granted—Principles of res judicata not attracted.
(Para 28)
(D) Practice and procedure—Execution application—When the order impugned
is quashed, the execution application which is a consequence of the order cannot be
sustained. (Para 29)
Case law.—(2006) 6 SCC 207; AIR 2000 SC 2966; (2004) 6 SCC 254; 2007 (3) CTC
11; AIR 1997 SC 1125; (2004) 9 SCC 786; AIR 1960 SC 941; (2002) 7 SCC 447; AIR 1964
SC 993; (2007) 136 Comp Cas 665 (SC); (2002) 1 SCC 567.
Counsel.—Mr. P.S. Raman, Senior Advocate for Mr. P. Wilson, for the petitioner in
both the writ petitions; Mr. A.L. Somayaji and Mr. Habibullah Badsha, Sr. Counsel for M/s.
S. Ramasubramanian & Assts., for the 1 st respondent in W.P.Nos. 12826 and 12827 of 2007.
JUDGMENT
V. DHANAPALAN, J.—While W.P. No.12827 of 2007 has been filed challenging the
order dated 19.03.2007 passed by the second respondent in Petition No.291 (C) of 2006 and
to quash the same, W.P. No.12826 of 2007 has been filed seeking to quash the order dated
03.04.2007 passed by the second respondent in E.A. No.3 of 2007.
2. Since the facts involved in these two writ petitions are same, they are decided by
this common order and the facts which are necessary for consideration, are as under:
(a) TATA Sky Limited (‘TATA’ for short), the first respondent herein had filed a
petition under Section 14 of the Telecom Regulatory Authority Act of India,
1997 in Petition 291(C) before the Telecom Dispute Appellate Tribunal (in short
‘the Tribunal’), the second respondent herein seeking the relief of declaration
that Sun TV Limited (in short ‘Sun TV’), the petitioner herein, is a defaulter in
terms of Government of India order dated 01.06.2005 for having refused
access of the channels on a non-discriminatory basis to TATA as laid down in
the applicable regulation of TRAI and for a direction to Sun TV to discharge the
statutory obligations under the interconnection regulation of TRAI dated
10.12.2004 to provide signals of its channels to TATA on the reasonable terms
and conditions.
(b) It was stated in the counter-affidavit filed by Sun TV that it owns about 11
channels and its group companies viz., Gemini TV Pvt. Ltd. and Udaya TV Ltd.
own 5 and 4 channels respectively and these Companies have
authorized ‘Channel Plus’ a unit of Kal Com Pvt. Ltd. to licence the said
channels for broadcast distribution on DTH platform; in the absence of fixation
of rate by the TRAI, TATA should pay the rate fixed by Sun TV and there was
no cause of action for TATA to approach the Tribunal; as per 3.6 of the Telecom
Interconnection Regulation Act, 2004, the broadcaster has to provide TV signals
or turn down the request and such denial of request will enable the distributor to
agitate the matter in the appropriate forum and there is no denial of request on
the part of Sun TV as in fact, TATA had been asked to meet the concerned
person in the office of Sun TV and none of TATA’s people has met the Sun TV
in-charge; the cable TV rate for 14 channels as declared to TRAI is Rs.83.67 per
subscriber per month and not Rs.25/- per subscriber per month and that of Sun
Network adds up to Rs.119/- per subscriber per month; TATA had created some
documents as if a proposal had been sent to Sun TV, a term sheet had been
handed over to Sun TV and a draft agreement also had been submitted to Sun
TV and at no point of time, there was any discussion between Sun TV and
TATA regarding of supply of channels though the former had addressed several
letters to the latter to negotiate with its one Hansraj Saxena, the person in-
charge.
(c) As per the order dated 21.11.2006 passed by the Tribunal that a meeting for
amicable settlement be held on 24.11.2006, a meeting was held between the
parties at Chennai on 24.11.2006 during which meeting, Sun TV informed
TATA that signals of 20 channels of Sun TV group pending fixation of rates
would be provided at the rate of Rs.85/- to the subscriber per month and this was
not acceptable to TATA.
(d) On 24.01.2007, for TATA’s request to pass an interim order in the petition, the
Tribunal held that it cannot be acceded to due to the diversity of the stand
between Sun TV and TATA. Aggrieved by the non-granting of an interim
order, TATA filed a writ petition before the Delhi High Court seeking issuance
of a writ of mandamus to the Tribunal to grant interim relief. In the meanwhile,
since the Tribunal felt it difficult to pass final orders due to certain reasons, it
insisted upon the counsel to place their arguments for an interim prayer and after
hearing the arguments of both sides, it passed the order dated 19.03.2007
granting the interim prayer sought by TATA to the following effect:
 “. . .Therefore, as an interim measure, we direct the respondent to make
available signals of all its channels to the petitioner on a-la-carte basis at 50% of
its declared rates. It is made clear that view expressed in this order is only for
purposes of passing this interim order and it is not an expression of final opinion
on the controversy between the parties in this case.”
(e) As against the above interim prayer granted by the Tribunal, a Review
Petition had been filed by Sun TV which was not taken on file by the Tribunal
and instead, as per the direction of the Tribunal, Sun TV had filed a modification
petition. This being the position, the Tribunal took up E.P. No.3 of 2007
filed by TATA to execute the interim order and ordered Sun TV to
implement the interim order within a period of three days, defeating the purpose
for which the modification petition was filed.
3. Questioning the legality of the above two orders of the Tribunal, one in Petition
No.291 (C) of 2006 dated 19.03.2007 grating an interim order and the other in E.A. No.3 of
2007 dated 03.04.2007 directing Sun TV to implement the said interim order within a
period of three days, the present writ petitions have been filed by Sun TV.
4. This Court, on 05.04.2007, admitted the writ petitions and passed an order of
interim stay of the impugned order dated 19.03.2007.
5. Mr. P.S. Raman, learned senior counsel appearing for the petitioner has contended
that:
(a) when a writ petition filed by the first respondent before the Delhi High Court
challenging the order dated 24.01.2007 of the Tribunal is pending, the Tribunal
ought not to have passed the interim order in P. No. 291 (C) of 2006, particularly
because of its own rejection of the interim order and the fact that the principle
of res judicata estops it from passing the same;
(b) by passing the impugned order in Execution Application directing Sun TV to
implement its order within three days, the Tribunal had made the modification
petition filed by Sun TV infructuous;
6. With regard to his contention that a part of cause of action has arisen in Chennai by
virtue of the fact that the first meeting towards settlement was held in Chennai as per the
direction of the Tribunal and that is sufficient to maintain this writ petition on the aspect of
territorial jurisdiction, the learned senior counsel for the petitioner has placed reliance on a
judgment of the Supreme Court reported in (2006) 6 SCC 207 in the case of Om Prakash
Srivastava v. Union of India and another: (para 8)
“Two clauses of Article 226 of the Constitution on plain reading give clear
indication that the High Court can exercise power to issue direction, order or
writs for the enforcement of any of the fundamental rights conferred by Part III
of the Constitution or for any other purpose if the cause of action wholly or in part
had arisen within the territories in relation to which it exercises jurisdiction
notwithstanding that the seat of the Government or authority or the residence of
the person against whom the direction, order or writ is issued is not within the said
territories.”
 7. On the above aspect, further reliance has been placed by the learned counsel for the
petitioner on a decision of the Supreme Court reported in AIR 2000 SC 2966 in the matter of
Navinchandra N. Majithia v. State of Maharashtra (para 7)
“Thus, the power conferred on High Courts under Article 226 could as well be
exercised by any High Court exercising jurisdiction in relation to the territories
within which ‘the cause of action, wholly or in part, arises’ and it is no matter that
the seat of the authority concerned is outside the territorial limits of the
jurisdiction of that High Court. The amendment is thus aimed at widening the
width of the area for reaching the writs issued by different High Courts.”
8. Mr. P.S. Raman, learned senior counsel has placed further reliance on the above
aspect on a decision of the Supreme Court reported in (2004) 6 SCC 254 in the matter of
Kusum Ingots and Alloys Limited v. Union of India and another: (para 10)
“Keeping in view the expressions used in clause (2) of Article 226 of the
Constitution of India, indisputably even if a small fraction of cause of action
accrues within the jurisdiction of the Court, the Court will have jurisdiction in
the matter.”
9. The learned senior counsel appearing for the petitioner has finally contended that the
Tribunal has erred in granting an order at the interim stage which tantamounts to granting of
a final order and on this ground, the impugned order dated 19.03.2007 has to be quashed. In
this regard, he has placed reliance on a Division Bench judgment of this Court reported in
2007 (3) CTC 11 in the matter of the Bank of Tokyo Mitsubishi Limited, Mumbai v. Spartex
Ceramics India Limited and others (para 16)
“14. From a reading of the above-referred catena of judgments and taking an
overall view of the matter, we find that there is no such circumstances warranting
the learned Single Judge to give a finding to the effect that the shares are standing
in the name of the second plaintiff and were not transferred and therefore, prima
facie they belong to the second plaintiff and thus, the plaintiffs have right for an
interim injunction against the second defendant also not to deal with the shares,
pending disposal of the suit. Similarly, there is no warranting circumstance
for the learned Single Judge to direct the appellant herein to deposit the original
share certificate in this Court. These reliefs granted by the learned Single Judge at
the interim stage is nothing but the prayer in the suit itself which has to be
considered only at the ultimate stage of final decree. We are, therefore, of the
considered opinion that the learned Single Judge, without going into the legal
proposition involved in this regard, has granted the main relief itself which is
sought in the suit at the interim stage, which in other words, tantamounts to a pre-
trial decree.
15. As for the reliance placed by the counsel for the appellant on the decision
of the Supreme Court reported in Allahabad Bank v. Canara Bank and another,
2000 (2) CTC 723:2000 (4) SCC 406, we do not deem it necessary to go into the
same at this stage as the challenge is only with regard to the validity of the orders
of the learned Single Judge passed in the interim applications.
16. Having regard to the facts and circumstances of the case, the discussion made
above and also the various rulings cited, we are of the considered opinion that the
interim orders passed by the learned Single Judge in Application Nos.42 and 280
of 2000 suffer from legal infirmity as stated above and as such, do not have legs to
 stand. In that view of the matter the interim orders which are impugned in these
appeals are quashed and the appeals are accordingly allowed without any order as
to costs.”
10. Mr. Habibullah Badsha, learned senior counsel appearing for the first respondent,
at the outset, has vehemently argued that this Court does not have any territorial jurisdiction
over the Tribunal since the latter is in New Delhi. In support of this contention of his,
he has relied on a judgment of the Supreme Court reported in AIR 1997 SC 1125 in the
matter of L. Chandra Kumar v. Union of India and others: (para 91)
“Having regard to both the aforesaid contentions, we hold that all decisions of
Tribunals whether created pursuant to Article 323-A or Article 323-B of the
Constitution, will be subject to the High Court’s writ jurisdiction under Articles
226/227 of the Constitution, before a Division Bench of the High Court
within whose territorial jurisdiction the particular Tribunal falls.”
11. Further reliance has been placed by Mr. Habibullah Badsha, learned senior
counsel, on a decision of the Supreme Court reported in (2004) 9 SCC 786 in the matter of
National Textile Corporation Ltd. and others v. Haribox Swalram and others: (para 12)
“ . .As discussed earlier, the mere fact that the writ petitioner carries on
business at Calcutta or that the reply to the correspondence made by it was
received at Calcutta is not an integral part of the cause of action and, therefore, the
Calcutta High Court had no jurisdiction to entertain the writ petition and the view
to the contrary taken by the Division Bench cannot be sustained. In view of the
above finding, the writ petition is liable to be dismissed. . .”
12. Secondly, Mr. Habibullah Badsha, learned senior counsel has contended that the
petitioner has accepted and agreed to act upon the order dated 19.03.2007 in its various
applications filed a fter the passing of the said order and furthermore, by filing modification
application, only a small portion of the interim order passed by the Tribunal was sought to be
modified and as such, the petitioner is estopped from challenging the interim order passed by
the Tribunal.
13. Thirdly, the learned senior counsel for the first respondent has contended that the
writ petition filed by the first respondent has been withdrawn on 13.03.2007 which is much
prior to the passing of the impugned interim order and hence, the allegation of the
petitioner that the first respondent has instituted parallel proceedings cannot stand.
14. Mr. Habibullah Badsha, learned senior counsel, in support of his contention that
the principle of res judicata does not play any role in this case since the order of the Tribunal
is only interim in nature and the said principle is applicable only in respect of final orders,
has relied on a judgment of the Supreme Court reported in AIR 1960 SC 941 in the matter of
Satyadhyan Ghosal and others v. Smt. Deorajin Debi and another: (paras 8 and 16)
“The principle of res judicata applies also as between two stages in the same
litigation to this extent that a Court, whether the trial Court or a higher Court
having at an earlier stage decided a matter in one way will not allow the parties
to re-agitate the matter again at a subsequent stage of the same proceedings. Does
this however mean that because at an earlier stage of the litigation a Court has
decided an interlocutory matter in one way and no appeal has been taken therefrom
or no appeal did lie, a higher Court cannot at a later stage of the same litigation
consider the matter again?
 It is clear, therefore, that an interlocutory order which had not been appealed from
either because no appeal lay or even though an appeal lay an appeal was not taken
could be challenged in an appeal from the final decree or order. A special
provision was made as regards orders of remand and that was to the effect that if an
appeal lay and still the appeal was not taken the correctness of the order of
remand could not later be challenged in an appeal from the final decision. If
however, an appeal did not lie from the order of remand the correctness thereof
could be challenged by an appeal from the final decision as in the cases of other
interlocutory orders. The second sub-section did not apply to the Privy Council
and can have no application to appeals to the Supreme Court, one reason being that
no appeal lay to the Privy Council or lies to the Supreme Court against an order of
remand.”
15. On the above aspect, the learned senior counsel has further relied on a judgment of
the Supreme Court reported in (2002) 7 SCC 447 in the matter of C.V. Rajendran and
another v. N.M. Muhammed Kunhi: (paras 4 and 5)
“Mr. P.P. Rao, learned senior counsel, appearing for the appellants contends
that the order passed by the Appellate Authority holding that the eviction petition
was maintainable and that Section 15 of the Act was not a bar, does not operate as
res judicata. In support of his contention, the learned senior counsel relies upon a
judgment of this Court in Satyadhyan Ghosal v. Deorajin Debi.
We have perused that judgment. It is laid down therein that an interlocutory order
which did not terminate the proceedings and which had not been appealed against
either because no appeal lay or even though an appeal lay, an appeal was not taken,
could be challenged in an appeal from the final decree or order. It was observed
that interlocutory judgments which have the force of a decree must be
distinguished from other interlocutory judgments which are a step towards the
decision of the dispute between the parties by way of a decree or a final order. In
that case, the question of applicability of Section 28 of the original Thika Tenancy
Act, 1949 was held to be interlocutory in nature, falling in the latter category.”
16. As contended by Mr. Habibullah Badsha, learned senior counsel, Mr. A.L.
Somayaji, learned senior counsel appearing for the first respondent in W.P. No.12826 of
2007 also has contended that res judicata would come into force only in respect of final
orders as per Section 11 of the Civil Procedure Code and since the order passed by the
Tribunal is only an interim one, the impugned order is not hit by res judicata. In this regard,
reliance has been placed by him on a decision of the Supreme Court reported in AIR 1964 SC
993 in the matter of Arjun Singh v. Mohindra Kumar and others: (para 13)
“It is needless to point out that interlocutory orders are of various kinds; some like
orders of stay, injunction or receiver are designed to preserve the status quo
pending the litigation and to ensure that the parties might not be prejudiced by the
normal delay which the proceedings before the Court usually take. They do not, in
that sense, decide in any manner the merits of the controversy in issue in the suit
and do not, of course, put an end to it even in part. Such orders are certainly
capable of being altered or varied by subsequent applications for the same relief,
though normally only on proof of new facts or new situations which
subsequently emerge. As they do not impinge upon the legal rights of parties to
the litigation the principle of res judicata does not apply to the findings on which
these orders are based, though if applications were made for relief on the same
 basis after the same has once been disposed off the Court would be justified in
rejecting the same as an abuse of the process of Court.”
17. Mr. A.L. Somayaji, learned senior counsel for the first respondent, to
substantiate his argument that no cause of action has arisen in Chennai and that a Court
would have territorial jurisdiction only if there is at least a part of cause of action, has relied
on a judgment of the Supreme Court reported in (2007) 136 Comp Cas 665 (SC) in the matter
of Alchemist Ltd. and another v. State Bank of Sikkim and others: (para 44)
“From the aforesaid discussion and keeping in view the ratio laid down in
catena of decisions by this Court, it is clear that for the purpose of deciding
whether facts averred by the petitioner-appellant, would or would not constitute a
part of cause of action, one has to consider whether such fact constitutes a material,
essential, or integral part of the cause of action. It is no doubt true that even if a
small fraction of the cause of action arises within the jurisdiction of the Court,
the Court would have territorial jurisdiction to entertain the suit/petition.
Nevertheless it must be a ‘part of cause of action’, nothing less than that.”
18. While contending that the entire facts pleaded in support of the cause of action
should constitute a cause so as to empower the Court to decide a dispute, Mr. A.L. Somayaji,
learned senior counsel has relied on a judgment of the Supreme Court reported in (2002) 1
SCC 567 in the case of Union of India and others v. Adani Exports Limited and another:
(para 17)
“It is seen from the above that in order to confer jurisdiction on a High
Court to entertain a writ petition or a special civil application as in this case, the
High Court must be satisfied from the entire facts pleaded in support of the cause
of action that those facts do constitute a cause so as to empower the Court to decide
a dispute which has, at least in part, arisen within its jurisdiction. It is clear from
the above judgment that each and every fact pleaded by the respondents in their
application does not ipso facto within the Court’s territorial jurisdiction unless
those facts pleaded are such which have a nexus or relevance with the lis that is
involved in the case. Facts which have no bearing with the lis or the dispute
involved in the case, do not give rise to a cause of action so as to confer territorial
jurisdiction on the Court concerned. If we apply this principle then we see that
none of the facts pleaded in para 16 of the petition, in our opinion, falls into the
category of bundle of facts which would constitute a cause of action giving rise to
a dispute which could confer territorial jurisdiction on the Courts at Ahmedabad.”
19. Countering the arguments made by Mr. Habibullah Badsha, Mr. P.S. Raman
appearing for the petitioner has contended that the second respondent Tribunal is only a
statutory body and not created pursuant to Article 323-B of the Constitution of India and as
such, the contention made by the former that the writ petition can lie only before a Division
Bench cannot be sustained.
20. I have given due consideration to the rival contentions of the learned senior
counsel for the parties and the judgments relied on by them in support of their arguments.
21. The points which emerge for consideration in these writ petitions are as follows:
(a) Whether this Court has got territorial jurisdiction to entertain these writ
petitions?
(b) Whether the interim order granted by the Tribunal on 19.03.2007 in P.
No.291(C) of 2006 tantamounts to granting of a final order?
 (c) Whether the impugned order dated 19.03.2007 in P. No.291(C) of 2006 passed
by the Tribunal is hit by the principle of res judicata in view of its order dated
24.01.2007
(d) Whether the Tribunal is correct in its approach in ordering the execution
petition?
22. As far as the first point for consideration is concerned, it is no doubt trite, as has
been held by the Supreme Court in its catena of judgments, that even if a fraction of a cause
of action has arisen within the territorial jurisdiction of a Court, that is sufficient for the Court
concerned to entertain a petition which cannot be dismissed on the ground that the Court does
not have territorial jurisdiction to deal with the said petition. In the instant case, admittedly,
while the petitioner is having its registered office in Chennai and carrying on its business in
Chennai, the first respondent is having its office in New Delhi and also the Tribunal which
has passed the impugned orders is housed in New Delhi. Mr. Habibulla Badsha, learned
senior counsel for the first respondent, by placing reliance on the judgment reported in AIR
1997 SC 1125 (supra) has vehemently contended that since the Tribunal is located in Delhi,
the present petitions which have been filed before this Court and that too before a Single
Judge, cannot be maintained on account of lack of territorial jurisdiction by this Court.
While attacking this contention of Mr. Habibullah Badsha, Mr. P.S. Raman has contended
that the judgment relied on by the former cannot be made applicable to the facts of this
case since the Tribunal is not a body instituted under Article 323-A or 323-B of the
Constitution but under a statute and this reply given by Mr. Raman sounds to be convincing.
Further, it is to be seen that the reach of the package offered by the petitioner is not restricted
to one particular area only. Rather, it is going to have a nation-wide coverage. That apart, as
per the direction of the Tribunal, the petitioner and the first respondent have also held a
meeting in Chennai to come to an amicable settlement, but in vain and this is not disputed by
the first respondent. In this case, the petitioner has pleaded every aspect of cause of action
and the facts pleaded do have some nexus and relevance with the issue involved in this case.
Moreover, the ultimate relief if it is granted, it will have an effect of giving signals from the
channels owned by Sun TV. Therefore, there is at least a part of cause of action which does
offer jurisdiction to this Court as per clause (2) of the Article 226 of the Constitution of India.
23. From the above series of events, it has to be held that a part of cause of action has
certainly arisen for the petitioner to move this Court by way of the present writ petitions
questioning the interim order dated 19.03.2007 passed by the Tribunal. In that view of the
matter, the first question for consideration is answered in affirmative; as such, let me proceed
to answer the other two questions.
24. While coming to the second point for consideration as to whether the order passed
by the Tribunal on 19.03.2007 tantamounts to granting of final order at the interim stage, it
would be useful to have a look at the main reliefs sought in Petition No.291(C) before the
Tribunal which are necessary for answering the above question and the same read as under:
(a) to declare the respondent herein as defaulter in terms of Government of India
Order dated 01.06.2005 having refused access of their channels on a non-
discriminatory basis to the petitioner as laid down in the applicable regulations
of TRAI; and
(b) direct the respondent to discharge their statutory obligations under the
Interconnection Regulation of TRAI dated 10.12.2004 to provide signals of its
 channels to the petitioner on reasonable terms and conditions which are
found to be fair, non-discriminatory and reasonable by this Hon’ble Court.
25. Further, it would also be necessary to refer to the finding portion of the order dated
19.03.2007 passed by the Tribunal which reads thus:
“At this stage it is difficult to say whether the alleged agreement of the
respondent with Dish TV is real or sham. However, we cannot lose sight of the
fact that the arguments that Dish TV is still not showing any of the channels of
respondent in spite of alleged agreement of November 2006, has not been
controverted by the counsel appearing for the respondent. Therefore, for present
purposes we can take it as correct that Dish TV is not showing any of the
respondent’s channels on its DTH platform. This casts a doubt about the argument
that another DTH operator, i.e. Dish TV has taken the entire bouquet of
respondent.
The learned counsel for the respondent also argued that the petitioner is carrying
bouquets of channels of other broadcasters and, therefore, petitioner should
have channels of respondent also in bouquet only. In our view, this argument
is totally misconceived. The arrangement of the petitioner with each distributor is a
matter of negotiation between the parties and whatever may be the
arrangement with a particular party it cannot be said that same arrangement has to
be with another party. Moreover, the respondent has not given any concrete
instance in this behalf except making a bald statement. The respondent is offering
its channels on a-la-carte basis as per affidavit quoted above, which leaves no
scope for such an argument. This argument is, therefore, rejected.
Next, it was argued on behalf of the respondent that allowing petitioner to take
channels of respondent on a-la-carte basis will create a discriminatory
regime because the respondent is not offering its channels on that basis to any other
party. This argument is factually contrary to the stand of the respondent in its own
affidavit which has been quoted hereinbefore. Moreover, the respondent has not
placed any material before us nor anything was referred to in support of the stand
that it was offering its channels only as a bouquet/package to its customers. Such
argument being advanced without laying any factual foundation for it, is neither
here nor there. So far as the question of rates of the channels of the respondent is
concerned, the respondent has admittedly given these rates to the TRAI also and
the rates given on page 154 of the paper book were not even disputed by the
counsel appearing for respondent. Therefore, as an interim measure, we direct the
respondent to make available signals of all its channels to the petitioner on a-la-
carte basis at 50% of its declared rates. It is made clear that view expressed in this
order is only for purposes of passing this interim order and it is not an expression
of final opinion on the controversy between the parties in this case.”
26. From a reading of the above, it is clear that the main relief sought by TATA which
is numbered as “b” has been granted as an interim measure. In other words, one of the main
reliefs sought by TATA has been granted by the Tribunal by going into the merits of the case
after exhaustively discussing various matters such as supply of signals as mentioned in
page 154 of paper book as a bouquet, fixation of price for the supply of those channels,
etc. which have to be discussed only at the stage of final hearing for grant of final order. I am
therefore of the considered opinion that the Tribunal, without going into the settled legal
proposition that the main relief cannot be granted at the interim stage, has granted the main
relief in the guise of granting an interim order and this certainly tantamounts to the effect
of granting a pre-trial decree. This opinion of mine is supported by a Division Bench
judgment of this Court reported in 2007 (3) CTC 11 which is relied on by the learned senior
counsel for the petitioner (supra) in which I was a member. Therefore, I am constrained to
hold that the order passed by the Tribunal on 19.03.2007 directing Sun TV to make available
signals of all its channels to TATA on a-la-carte basis at 50% of its declared rates cannot be
sustained and in that view of the matter, the order dated 19.03.2007 passed by the Tribunal is
quashed. Accordingly, this question is answered in favour of the petitioner.
27. To decide the third point for consideration as to whether the order dated
19.03.2007 passed by the Tribunal is hit by the principle of res judicata in view of the
Tribunal’s order dated 24.01.2007, it would be useful to refer to the order mentioned latter
which reads thus:
“We have tried to explore the possibility that an interim order could be passed at
this stage pending final hearing of the petition. It appears that the diversity of the
stand of the petitioner and the respondent is so much that interim order is not
possible. Dr. Singhvi, learned senior counsel appearing for the respondent has
offered that the respondent can supply all the 20 channels listed at page 154 of the
paper book to the petitioner @ Rs.85/- per subscriber per month. He submits that it
is at this rate that the respondent is supplying signals of all the 20 channels to
the other DTH operator known as Dish TV/ASC. However, this offer is not
acceptable to the petitioner. According to the learned counsel for the petitioner,
the facts about the above offer are not correct.
The respondent has filed an additional affidavit with our permission in the Court
today. List the matter for hearing on 14th February, 2007.”
28. A reading of the above order would make it amply clear that the Tribunal has
worked out the possibility of granting an interim order and since that was not possible due to
the diverse stand of the parties, the matter had been adjourned to 14.02.2007. To put it in the
other way, what the Tribunal has done is, it has tried its level best to bring the parties to an
amicable settlement. But, due to the diversified stand of the parties, there was no other
option except to adjourn the matter. Thus, it is clear that no order, either interim or final, was
passed and at the same time, the request for an interim prayer was not rejected and instead,
the matter simply stood adjourned. In that view of the matter, it cannot be held that the
impugned order dated 19.03.2007 passed by the Tribunal is in contravention to Section
11 of the CPC which deals with the principle of res judicata. Thus, the third point for
consideration is answered in favour of the first respondent.
29. With regard to the fourth point for consideration as to whether the Tribunal is
correct in ordering the execution petition, this Court holds that since the impugned order
dated 19.03.2007 is quashed, the Execution Application which is a consequence of the order
dated 19.03.2007 cannot be sustained and so also the order of the Tribunal therein.
30. Though it is made clear by this Court that the impugned order dated 19.03.2007 is
not hit by res judicata, considering the fact that final hearing of the matter is to be taken by
the Tribunal in a few days’ time, i.e. on 12.07.2007 as per the direction of the Supreme Court
in S.L.P. (Civil) No.6993 of 2007 dated 27.04.2007, the petitioner and the first
respondent are directed to maintain status quo as on date till the matter is taken up by the
Tribunal for final hearing on 12.07.2007.
In fine, both the writ petitions are allowed. No costs. Consequently, connected M.Ps
are closed.
Writ petitions allowed.

[2007 (2) TNCJ 377 (Mad)]

MADRAS HIGH COURT
BEFORE:
M. CHOCKALINGAM, J.
UNION OF INDIA, REP. BY ITS SECRETARY
MINISTRY OF TELECOMMUNICATIONS
THROUGH THE ASSISTANT GENERAL
MANAGER, CHENNAI AND OTHERS ...Petitioners
Versus
ZAREEN TAJ BEGUM @ RUPAB BEGUM ...Respondent
[C.R.P. (NPD) No. 1743 of 2007 and M.P.No. 1 of 2007, decided on 4 July, 2007]
th

Tamil Nadu Buildings (Lease and Rent Control) Act, 1960—Section 25—Eviction
order—Appeal—Dismissal of—Legality— Tenant for decades—Rent paid till March,
1999—Rent not paid from 1-4-1999 till the filing of the eviction petition—Plea raised—
Ownership of landlady denied since the date of passing of award in the acquisition
proceeding—Where an award has been passed following acquisition proceeding, till
the delivery has taken under Section 16 of the Act, no question of divesting would arise
—Tenant continued to commit default during pendency of eviction petition—Deposit
made under compulsion in appeal—Wilful default committed—Authorities below
rightly ordered eviction—Six months’ time granted to vacate the premises.
(Paras 7 to 11)
Case law.—1985 (1) SCC 591.
Counsel.—Mr. T.R. Rajagopalan, Senior Counsel for Mr. K. Sridhar, for the
petitioners; Mr. S. Subramanian for Caveator, for the respondent.
JUDGMENT
M. CHOCKALINGAM, J.—Challenge is made to an order of the Rent Control Appellate
Authority, namely the VIII Judge, Court of Small Causes, Madras, made in RCA No.209 of
2001 affirming an order of eviction in RCOP No.2068/99 on the file of the Rent Controller,
filed by the revision petitioners.
2. The respondent-landlady sought the eviction of the tenant from the petition
mentioned premises at Door No.60 (Part), Montieth Road, Egmore, alleging that the first
revision petitioner has been a tenant from 1964; that out of the larger extent, a part has also
been sold; that the premises was being used by the third petitioner for its office use; that the
monthly rental payable was Rs.18,127/-; that though acquisition proceedings were initiated,
possession was not taken over; that under the circumstances, the matter has not become
final; that the tenant was making payment of rental till March, 1999; that there was default in
payment of rental from 1.4.1999; that a notice was issued on 30.7.1999, but, was of no avail,
and under the circumstances, it has become necessary to approach the Rent Controller for
an order of eviction.
3. The application was contested by the tenant stating that the respondent herein is not
the owner of the property since the Tamil Nadu State Government has already acquired the
property after observing all formalities; that Chennai Telephones has paid Rs.48.42 lakhs
towards the land and building cost in January 1987 and November, 1989; that an award has
also been passed; that under the circumstances, the respondent was only the ex-owner of the
property; but, she has refused to honour the award; that in such circumstances, a civil suit
was filed by the tenant before this Court; that a judgment was passed in that suit, wherein it
was found that the property had already vested with the tenant; that apart from that, there was
a communication from the higher-ups on the basis of which the rental payment was stopped;
that it is true that there was payment of rental from 1989 onwards even after the passing of
the award, till March, 1999; but, it was wrongly made to the tune of Rs.27,95,364.20; that the
same has got to be recovered, and thus, the tenant was not under any liability to make any
payment of rental; that there was no question of default, much less wilful default, and hence,
the petition was to be dismissed.
4. The Rent Controller on enquiry, passed an order of eviction holding that there was
wilful default. Aggrieved, the revision petitioners herein took it on appeal. The appellate
forum in the appeal referred to above, took the same view taken by the Rent Controller,
and dismissed the appeal. Hence, this revision has been brought forth by the tenant.
5. The learned senior counsel advancing his arguments on behalf of the revision
petitioners would submit that in the instant case, it is true that the first revision petitioner was
a tenant under the respondent-landlady; that following the acquisition proceedings, an award
came to be passed in 1989, and thus, the petitioners herein became the owners of the
property; that from the time onwards, they need not pay rental also; but, they continued to
pay the same till March 1999; that apart from that, it is true that these proceedings have been
quashed by an order of the Division Bench only in October, 2006; that there were two
suits filed by both the parties respectively; that there was an occasion when the learned Judge
of this Court found that the property had already vested with the revision petitioners; that
in view of the same, they have been under the impression that they are the owners of the
property, and hence, they need not make the payment of rental; that even it could be called as
mistaken impression; that under the circumstances, there is nothing to hold that there was
any supine indifference or any wilful default; that there was actually a communication from
the higher-ups following the judgment of this Court in the civil suit; that thereafter, the
payment was stopped; that till March 1999, the rental payment has also been made; that this
would be indicative of the fact that the tenant was regular in making the payment; that only
subsequent to the judgment of this Court finding that the property has become vested with the
party, they felt that there was no need to pay the rent; that the delivery of possession was only
formal; that they were under the bona fide impression that the rent need not be paid, and
hence, it was not paid; and that at no stretch of imagination, it can be called as a wilful
default. The learned senior counsel in support of his contention relied on a decision of the
Apex Court reported in (1985) 1 SCC 591 (Sundaram Pillai v. Pattabiraman) and would
submit that this decision squarely applies to the present facts of the case; that it is not a case
where the landlady has proved that there was default, much less wilful default; but, the
authorities below have not applied its mind proper and found to be otherwise, and under
the circumstances, the orders of the authorities below have got to be set aside.
 6. Countering the above contentions, the learned counsel for the respondent-caveator
would submit that till March 1999, the rental payment was made without any murmur; that
even the suits have been pending between the parties; that the writ petition to quash the
award proceedings was filed in 1989; that two suits were filed, one by the respondent-
landlady in 1991, and the other by the revision petitioners in 1996; that both the suits have
been pending for nearly about 10 years; that even then, the payment of rental was made till
March, 1999; that it would be indicative of the fact that the revision petitioners were
conscious of the fact that the ownership was not divested from the landlady; that under the
circumstances, at no point of time, there was termination of the relationship of landlady and
tenant, which would arise; that under the circumstances, the revision petitioners were
liable to make the payment of rental; that further, what was all relied upon by the opposite
party was a communication addressed by the higher-ups from Delhi following the
judgment of this Court, on the basis of which they claimed that the rent need not be paid; that
it is pertinent to point out that the communication was sent only on 30.6.1999; but, the
default was committed from April 1999; that even during the pendency of the RCOP, no
payment was made; that an order of eviction was passed; that while they preferred an appeal,
they sought for say; that while granting stay, a condition was imposed that the entire rental
arrears must be deposited before the Court; that only under such contingency which arose,
they have deposited the amount; otherwise, they would not have done; that now, they cannot
come forward to say that there was a mistake committed; that it has got to be termed only as
a supine indifference, and it was a wilful default, and hence, the orders of the authorities
below have got to be sustained.
7. After careful consideration of the rival submissions made, this Court is of the
considered opinion that the orders of the authorities below do not require any interference in
the hands of this Court. Admittedly, the first revision petitioner has been in the property as a
tenant for decades. It is also not in controversy that the rent has been paid till March 1999;
that according to the respondent- landlady, the default commenced from 1.4.1999. It is
also an admitted position that the rent was not paid by the tenant from 1.4.1999 till the
filing of the RCOP before the Rent Controller, after issuing a notice therefor. The main
objection was that the respondent-landlady was only the previous owner; that the
revision petitioners have become the owners of the property pursuant to the award which
came to be passed in 1989; that the rents have been paid from 1989 even after the passing of
the award, till March, 1999; but, it was wrongly made to the tune of Rs.27 lakhs and odd, and
it has got to be recovered from the landlady. All these above would speak of the tenor of the
counter that they have strongly denied the ownership of the landlady. Needless to say that in
a case where an award has been passed following the acquisition proceedings, till the
delivery has taken place under Section 16 of the Act, no question of divesting would arise.
8. Apart from the above, in the instant case, the following circumstances are noticed
which are against the revision petitioners.
(i) No doubt, the award was passed in the year 1989. But, from 1989 till March,
1999, the rents have actually been paid. There was originally a writ petition filed
by the respondent-landlady challenging the acquisition proceedings in WP
No.14229/89. Pending the same, the award was passed. Thereafter, the landlady
again filed WP No.16135/89 challenging the final award, and the same was
dismissed by this Court. Then, the landlady preferred an appeal therefrom. The
Division Bench of this Court directed the landlady to approach the Court of
 civil law, and accordingly, she filed O.S.No.1917/91 before the City Civil Court
challenging the acquisition proceedings. At that time, the revision petitioner-
department filed C.S.No.159 of 1996 before this Court. The suit before the City
Civil Court was transferred to this Court, and it was also renumbered as
C.S.No.26/97. Both the suits were taken up for trial by this Court. Now, at this
juncture, it is pertinent to point out that both the suits came to be dismissed on
27.1.1997. Even after that period, the first revision petitioner-tenant was making
the payment of rental till March 1999. All would be indicative of the fact that till
March 1999, the rents have been paid, and they were conscious of the fact that the
first petitioner continued to be a tenant till the possession was taken pursuant to the
award.
(ii) There was a communication from the higher-ups to the respondent; but, that
communication was sent only on 30.6.1999, and the default was committed from
April 1999. It was also brought to the notice of the Department by way of a notice,
and even after that, the rent was not paid.
(iii) When the RCOP was filed, the tenor of the counter was denial of title stating that
the revision petitioners have become the owners of the property following the
award, which cannot, but be wrong. Even during the pendency of the RCOP
proceedings, no rental payment was made. Now, at this juncture, a doubt would
arise in the mind that when the RCOP proceedings were actually pending, the
entire amount could have been deposited before the Court of law on permission or
otherwise, but not done so.
(iv) After suffering an order of eviction in the RCOP, the revision petitioners took
it on appeal. They sought for stay. While granting stay, the condition imposed by
the appellate authority, was that the entire rental arrears should be deposited, and
accordingly, it has been deposited. It can be well stated that if there was no
condition for the grant of stay, the tenant would not have deposited the same before
the Rent Control Appellate Authority. Thus, it would be pointing to the fact that
the tenant has deposited the entire arrears before the authority below only under the
compelled circumstances and not voluntarily.
9. Apart from the above, the contention that there was an award passed, and they have
been under the impression that the property vested with them, and therefore, they did not pay
the rent cannot be countenanced. The main question that would arise for consideration in this
case is whether there was a wilful default on the part of the tenant as contended by the
respondent-landlady, or whether the other party namely the tenant, was under the bona fide
impression that the property has become vested with them, and therefore, they did not make
the payment, and thus, it cannot be stated to be a wilful default as one called by the
respondent. Mere impression of the party that the property has become vested with them
following the award, cannot be an answer to this, and it can be stated as ignorantia juris non
excusat. However, in the instant case, proceedings have been pending between the parties for
about a decade in all the Courts by way of writ petitions and by way of suits. The crowning
circumstance is not only the non-payment of rental for the months of April, May, June and
July before the filing of the RCOP; but, they continued to commit default during the
pendency of the RCOP proceedings, and they have deposited the same only before the
appellate forum while it granted stay by imposing such a condition. Even before this Court,
at the time of the filing of the revision, a ground was raised that they have become the
owners, and therefore, they have not made the payment of rental, and there is no question of
default or wilful default. In view of the above circumstances, the contention put forth that
they were under the bona fide belief that following the award, the title became vested with
them, and therefore, they need not pay anything cannot be accepted. But, at the same time, it
can be well stated that they entertained actually a risk and that too against law. The further
contention that they have made the payment in the past period from 1989 to 1999, and that
has got to be recovered would indicate that they have become the owners of the property
even during the pendency of the proceedings, and they continued to deny the title, and
thereby, they have not paid the rent. Under the circumstances, it was their own making
which, in the opinion of this Court, would be nothing but a supine indifference and a wilful
default only. Both the authorities below have rightly found in favour of the landlady and
ordered eviction.
10. It is brought to the notice of the Court by the learned senior counsel for the
petitioners that they are running the business in the place, and therefore, sufficient time has
got to be given to find out suitable accommodation and that too, in Madras city. The Court
heard the learned counsel for the respondent also. Considering the circumstances, this Court
grants six months’ time to vacate and hand over possession. An affidavit of undertaking
should be filed within a period of two weeks herefrom. The revision petitioners also
undertake to make the payment of rental for the said period herefrom directly to the landlady.
11. In the result, this civil revision petition fails and the same is dismissed. No costs.
Consequently, connected MP is also dismissed.
Petition dismissed.

[2007 (2) TNCJ 383 (Mad)]

MADRAS HIGH COURT
BEFORE:
N. PAUL VASANTHAKUMAR, J.
V.S. SUBBARAYAN ....Petitioner
Versus
THE PRINCIPAL, GOVERNMENT ARTS COLLEGE (MEN)
KRISHNAGIRI, DHARMAPURI AND ANOTHER ....Respondents
[W.P. No. 15066 of 2006, decided on 5th July, 2007]
(A) Constitution of India, 1950—Article 226—Voluntary retirement—Request
for, while on leave—Completion of more than 20 years of service and also 50 years of
age when request for voluntary retirement was made—Rule—F.R. 56 (3)—
Applicability of—Nowhere states that if a person is on leave, he is not entitled to submit
application for voluntary retirement—Could submit only after joining the post—Notice
period expired on 9-6-1994— Rejection order passed on 8-7-1994—Long after the
expiry of the notice period of three months—Deemed acceptance taken place from 9-6-
1994—Order of rejection after expiry of notice period of three months will have no
effect—Orders impugned are unsustainable—Petitioner shall be deemed to be
voluntarily retired from service from 9-6-1994—Absence after the said date cannot be
treated as unauthorized—Direction issued to settle the retirement benefits.
 (Paras 9 to 12)
(B) Tamil Nadu Civil Services (Discipline and Appeal) Rules—Rule 17 (b)—
Disciplinary proceedings—Initiated under—And the consequential order of removal—
When unsustainable.
(Para 12)
Case law.—W.P.No. 9880 of 2007, decided on 16-4-2004 (Mad); (2001) 3 SCC 290;
2006 (2) CTC 318; 2007 WLR 521; AIR 1972 SC 1546; AIR 1967 SC 1910.
Counsel.—Mr. P.V. Bakthavatchalam, for the petitioner; Mr. I. Paranthaman, Addl.
Govt. Pleader for the respondents.
JUDGMENT
N. PAUL VASANTHAKUMAR, J.—Petitioner seeks to quash the order of the
respondents 1 and 2 dated 8.7.1994 and 17.11.1994 respectively and to direct the
respondents to allow the petitioner to retire from service on 30.6.1994 and to pay all the
retirement benefits with cost within stipulated time.
2. The brief facts necessary for disposal of the writ petition are as follows:
(a) Petitioner was appointed as Lab Assistant in the Government Arts College
(Men), Krishnagiri, in the year 1964 and subsequently he was promoted as
Junior Assistant in the same College. At the time when he filed the original
application he had put in more than 30 years of unblemished service.
(b) On 17.9.1993, petitioner proceeded on earned leave initially for three months
and thereafter applied for unearned leave upto 30.6.1994. During leave period,
he sent a letter of voluntary retirement on 9.3.1994. Till then his leave was
neither sanctioned nor rejected. On 22.3.1994 first respondent sent a reply
stating that the petitioner having applied for unearned leave upto 30.6.1994,
three months notice period for voluntary retirement could be calculated only
from 1.7.1994 and on that date petitioner should join duty and apply for earned
leave for three months. Petitioner sent a reply on 24.3.1994 and stated that the
notice period may be taken from 9.3.1994 to 9.6.1994 and permit him to go on
voluntary retirement from 9.6.1994.
(c) On 17.3.1994 the second respondent called for records from the first respondent
and on 14.6.1994 directed the first respondent to take action on the request of the
petitioner as he is the appointing authority, empowered to consider the voluntary
retirement request. The first respondent failed to pass any order and instead sent
a letter on 1.7.1994 stating that the petitioner has to give three months notice
after joining duty and he shall be eligible to get full pay during the notice
period. Petitioner sent a reply on 5.7.1994 to the first respondent and on
8.7.1994 the first respondent rejected the request for voluntary retirement and
directed the petitioner to apply for reposting to the second respondent as there is
no vacancy in the first respondent college.
(d) Petitioner filed an appeal to the second respondent on 20.8.1994 and the second
respondent rejected the appeal on 17.11.1990 by stating that as per the
Government letter No.73081/FR3/91-7/P&AR dated 25.9.1992 request of
the petitioner cannot be complied with and therefore the petitioner challenged
the order rejecting the request for voluntary retirement and for consequential
relief.
 (e) The said orders are challenged on the ground that the first respondent failed to
pass any order on the request made by the petitioner seeking voluntary
retirement before the date of expiry of three months notice period and the
petitioner is deemed to be retired from service and the Government letter
referred above dated 25.9.1992 cannot be relied on as it is contrary to FR.56. It
is further contended in the affidavit that the object behind permitting the
Government servant to go on voluntary retirement is to enable the unemployed
to get employment without waiting for normal retirement and the said object
is defeated by the action of the respondents.
3. The second respondent filed counter affidavit before the Tribunal wherein it is
stated that while on leave, petitioner applied for voluntary retirement and as the said request
was not in normal format, he was informed by the first respondent on 22.3.1994 that he
should tender three months notice and during that notice period he should either be in service
or on leave with full pay. The petitioner having failed to comply with those conditions, the
first respondent requested the second respondent to take appropriate action as per the rules
and taking note of the Government letter dated 25.9.1992, petitioner’s request for voluntary
retirement was not accepted and a communication was sent to the petitioner on 1.7.1994 by
the first respondent.
4. The learned counsel for the petitioner submitted that as per FR.56, the Government
Servants are entitled to go on voluntary retirement on their attaining the age of 50, or who
has completed 20 years of qualifying service by giving not less than three months notice in
writing and the petitioner having been in service from 1964, he has completed about 30 years
of service and he has also completed more than 50 years of age. The learned counsel further
submitted that FR. 56 (e)(i) to (v) is the rule governing acceptance of voluntary retirement
request. Learned counsel relying on the said rule submitted that nowhere in the rule it is
stated that the person seeking voluntary retirement should be actually in service and not on
leave while submitting the notice for voluntary retirement. Reliance made by the second
respondent about the Government Letter is unsustainable in view of the statutory provision
contained in FR.56, which deals with submission of voluntary retirement request and the
manner in which it has to be processed, grounds on which it can be rejected and also deals
with deemed acceptance. The learned counsel also submitted that the voluntary retirement
request having been made by the petitioner on 9.3.1994, three months notice period expired
on 9.6.1994 and if the same is not rejected within three months, the request is deemed to have
been accepted under FR. 56(f). The rejection order passed in this case is admittedly after
9.6.1994, after expiry of the notice period and therefore the said order is a nullity, as the
petitioner is deemed to be retired from service voluntarily as on 9.6.1994 itself by
operation of law. The learned counsel further submitted that the first respondent through his
proceedings Na.Ka.No.2064/B/93, dated 14.10.2005 passed removal order against the
petitioner subject to the result of the said O.A.No.735 of 1995, which is transferred and
numbered as the above writ petition. Hence according to the learned counsel for the
petitioner, the petitioner’s removal from service is valid or not will depend upon the ultimate
decision to be rendered in this case.
5. The learned counsel for the respondents submitted that since the petitioner was on
leave, he is not entitled to submit request for voluntary retirement and only after his joining
duty, he can apply for voluntary retirement and even after rejecting the request, petitioner has
not reported to duty and therefore 17(b) charges were framed against the petitioner for his
unauthorised absence and after enquiry, he was terminated from service subject to the result
of this writ petition.
6. I have considered the rival submissions made by the learned counsel for the
petitioner as well as the learned Additional Government Pleader.
7. The point in issue is whether the petitioner is entitled to submit his request for
voluntary retirement on 9.3.1994 while he was on leave, requesting to relieve him from
9.6.1994 and whether the non-communication of rejection of request of the petitioner
before the expiry of three months notice period can be treated as deemed acceptance of
voluntary retirement and whether the respondents are justified in relying on the Government
letter dated 25.9.1992 when there is statutory provision in FR.56 to decide the issue ?
8. The facts in this case are not in dispute i.e., petitioner applied for voluntary
retirement on 9.3.1994 while he was on leave. Petitioner completed more than 20 years of
service and also 50 years of age on the date when he submitted his application for voluntary
retirement. The rule applicable to submit voluntary retirement is FR. 56(3). The said rule
nowhere states that if a person is on leave, he is not entitled to submit application for
voluntary retirement and only after joining in the post, he can submit his application. FR.
56(3) is extracted hereunder for proper appreciation.
“56(3) Voluntary Retirement.—(a) A Government servant who has attained the age
of fifty-years or who has completed twenty years of qualifying service may retire
from service by giving notice of not less than three months in writing direct to the
appointing authority with a copy marked to his immediate superior officer for
information. Before giving such notice, he may satisfy himself by means of a
reference to such authority that he has completed the required number of years
of qualifying service.
(b) The period of three months’ notice shall be reckoned from the date of receipt of
notice by the appointing authority.
(c) The three months notice may be given before the Government servant attains the
qualifying age or the qualifying service, as the case may be, provided that the
retirement takes place after attaining the specified age or completing the required
number of years of qualifying service, as the case may be.
(d)(i) A Government servant including a Government servant in the Tamil Nadu Basic
Service retiring Voluntarily shall be given a weightage not exceeding five years,
subject to the condition that the total qualifying service rendered by such
Government servant, including weightage, does not in any case exceed Thirty
years of qualifying service and it does not take him beyond the date of
superannuation, as the case may be.
(ii) The weightage given shall be in addition to the qualifying service for purposes of
pension and gratuity only, and it shall not entitle a Government servant retiring
voluntarily to any notional fixation of pay or purposes of calculating the
pension and gratuity. The pension shall be determined based on the 50% of the
average emoluments drawn during the last ten months of service rendered, or, 50%
of pay last drawn, plus dearness pay, if any, admissible from time to time, by the
Government servants, whichever is higher.”
Reasons for rejection of voluntary retirement are also enumerated in Rule 56(e)(i) to
(v), which reads thus:
 “56(e) notice of voluntary retirement given by a Government Servant shall be
accepted by the appointing authority, subject to the following conditions being
satisfied namely:-
(i) that no disciplinary proceedings are contemplated or pending against the
Government Servant concerned for the imposition of a major penalty;
(ii) that no prosecution is contemplated or pending in a Court of Law against the
Government servant concerned;
(iii) that a report from the Director of Vigilance and Anti- Corruption has been
obtained to the effect that no enquiry is contemplated or pending against the
Government servant concerned;
(iv) that no dues which cannot be recovered from his Death-cum-Retirement Gratuity
are pending to be recovered from the Government servant concerned; and
(v) that there is no contractual obligation to serve the Government during the period in
which the Government servant concerned seeks to retire voluntarily.”
None of the reasons contained in Rule 56(e)(i) to (v) states that a request for voluntary
retirement can be rejected if a person apply for the same while he is on leave. The effect of
not passing order before expiry of notice period is stated in FR.56(f), which reads as follows:
“56(f) The appointing authority shall issue orders before the date of expiry of
notice either accepting the voluntary retirement or not. Otherwise, the
Government servant shall be deemed to have been retired voluntary from service at
the end of the period of notice:
Provided that where a Government servant under suspension or against whom
disciplinary or criminal action is pending, seeks to retire voluntarily, specific
orders of the appointing authority for such voluntary retirement is necessary.
The appointing authority may withhold the permission sought for by the
Government servant, if any of the conditions specified in clause (e) are not
satisfied.”
As per Rule 56(f) before the date of expiry of the notice, if no order is passed
accepting or rejecting the request, the Government servant shall be deemed to have been
retired from service at the end of the notice period and as per the proviso, the request can be
rejected only on the grounds stated in FR. 56(e)(i) to (v).
9. As stated above, in this case, notice period expires on 9.6.1994. The rejection order
is passed by the respondent only on 8.7.1994. The said rejection order is admittedly long
after the expiry of the notice period of three months. The application submitted by the
petitioner on 9.3.1994 is deemed to be accepted on the last date of notice period i.e., on
9.6.1994. Hence, deemed acceptance of voluntary retirement has taken place from
9.6.1994 and the rejection order passed by the respondents, after expiry of the notice
period of three months will have no effect. Further the reason stated in the impugned order
rejecting the request of voluntary retirement is not the one among the reasons stated in FR.
56(e)(i) to (v).
10. Similar issue was considered by me in W.P.No.9880 of 2007 (Dr. Annabelle
Rajaseharan v. The Secretary to Government, Health and Family Welfare Department,
Chennai-9 and two others) by order dated 16.4.2007, wherein a voluntary retirement
request was rejected for a reason not stated in Rule 56(e)(i) to (v). In the said order, I have
followed the judgment of the Honourable Supreme Court reported in (2001) 3 SCC 290 (Tek
Chand v. Dile Ram) regarding the deemed acceptance of voluntary retirement on the expiry
of notice period. In the decision reported in 2006 (2) CTC 318 (S.M.A.Mohamed Yusoof v.
The Secretary, Government of T.N.) also I have considered similar issue.
11. Since the submission of voluntary retirement application, its consideration, its
acceptance or rejection and if no order is passed, deemed acceptance is clearly stated in the
statutory rule viz., FR.56(3), the respondents are not justified in stating some other reason not
stated in the statutory rule and they are not entitled to rely on the Government letter dated
25.9.1992, which cannot override the statutory rule. The said issue is well settled in the
decision of mine reported in 2007 WLR 521 (K.Sampath v. The State of Tamil Nadu and
others), wherein I have followed the decisions of the Honourable Supreme Court reported in
AIR 1972 SC 1546 (State of Haryana v. Shamsher Jang) and AIR 1967 SC 1910 (Sant Ram
Sharma v. State of Rajasthan).
12. In view of the said statutory provision and having regard to the fact that no order
having been passed by the respondents rejecting the request of the petitioner before
expiry of the three months notice period, I hold, the impugned orders are unsustainable and
the petitioner shall be deemed to be voluntarily retired from service from 9.6.1994. Since the
petitioner is deemed to be retired from 9.6.1994, his absence after the said date cannot be
treated as unauthorised absence and therefore the disciplinary proceeding initiated against the
petitioner under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules
and the consequential order of removal of the petitioner from service are also unsustainable.
Since the first respondent passed the order on 14.10.2005, removing the petitioner from
service subject to the result of O.A.No.735 of 1995 (this writ petition), the said termination
order will not have any effect, as this writ petition filed by the petitioner is allowed holding
that the petitioner shall be treated as deemed to be voluntarily retired from service from
9.6.1994. The respondents are directed to settle the retirement benefits payable to the
petitioner treating him as voluntarily retired from service on 9.6.1994, within a period of
three months from the date of receipt of copy of this order.
The writ petition is allowed with the above observations and direction. No costs.
Writ petition allowed.

[2007 (2) TNCJ 391(Mad)]

MADRAS HIGH COURT
BEFORE:
M. CHOCKALINGAM, J.
ERAMMAL ....Petitioner
Versus
THE MANAGING DIRECTOR, THE KERALA STATE ROAD
TRANSPORT CORPORATION, KERALA AND OTHERS ...Respondents
[C.R.P. (NPD) No. 1854 of 2005 and C.M.P. No. 16580 of 2005, decided on 28 th June, 2007]
Constitution of India, 1950—Article 227—Award of M.A.C.T.—One claimant
was entitled to 1/4th of the award—Application for withdrawal of her 1/4 th share—
Tribunal allowed withdrawal of 50% amount—Invoking of writ jurisdiction—No legal
impediment for allowing the petitioner to withdraw the entire amount—Petitioner the
mother of deceased adduced reason that she is an aged person—No body to
support her—She has joined with her daughter-in-law to purchase a piece of land
having 5 cents and to raise construction which would yield rent—Nothing to suspect the
reason adduced—Genuine reason—Order of Tribunal set aside—Withdrawal of entire
amount permitted. (Paras 5 and 6)
Counsel.—Mr. T. Pappiah Dharmarajan, for the petitioner; No appearance, for the
respondents.
JUDGMENT
M. CHOCKALINGAM, J.—An order of the Fast Track Judge, Dharmapuri, in
I.A.No.409 of 2005 made by the revision petitioner/4th claimant in MCOP No.158/96, is
challenged in this revision.
2. The Court heard the learned counsel for the petitioner. Despite service of notice,
the respondents have not appeared.
3. An award came to be passed by the Motor Accident Claims Tribunal, Dharmapuri,
in MCOP No.158/96 for a sum of Rs.4.25 lakhs along with interest and costs, on 24.4.2003.
A sum of Rs.7,64,447/- was actually deposited by the first respondent. As per the award,
every one of the claimants was entitled to 1/4th, and thus, the revision petitioner/fourth
claimant was entitled to Rs.1,06,250/-. She made the said application for the withdrawal of
the same on the ground that she was to join with her daughter-in-law-first claimant in
purchasing a small plot of 5 cents and making a construction thereon. But, the Tribunal was
not ready to agree with the reasons put forth, but has ordered withdrawal of 50% of the said
amount. Aggrieved, the claimant No.4 in the said MCOP has brought forth this revision
before this Court.
4. The learned counsel for the petitioner would submit that the petitioner/4th claimant
is the mother of the victim; that she was aged more than 60; that she had no other means; that
for getting some income, she wanted to join with her daughter-in-law and to make a
construction in a piece of land of 5 cents; that for that purpose, the amount was required; that
she and her daughter-in-law filed two applications in I.A.Nos.408 and 409 of 2005; but, the
Tribunal has ordered for the withdrawal of 50% in either case; and that once the reason put
forth was a real one, the Tribunal should have permitted the petitioner to withdraw the entire
amount.
5. After hearing the learned counsel for the petitioner and looking into the materials
available and in particular, the order of the Tribunal, this Court is of the considered opinion
that there cannot be any legal impediment for allowing the petitioner herein, the fourth
claimant, to withdraw the entire amount. Admittedly, the MCOP was filed following an
accident in which the revision petitioner-mother lost her son. The first claimant was the
wife of the victim, while the claimants 2 and 3 were the children and the 4th claimant who is
the revision petitioner herein, is the mother. The award was passed on 24.4.2003. Following
the same, the award amount along with accrued interest totalling to Rs.7,64,447/-, was
actually deposited, out of which the revision petitioner as per the award is entitled to 1/4th
namely Rs.1,06,250/-. When the application was filed for withdrawal of the entire amount,
the reason adduced therein was that there was nobody to support her, and she is an aged
person, and thus, she has joined with her daughter-in-law to purchase a piece of land having 5
cents and to raise construction, a part of which would yield rent, and under the circumstances,
it has got to be ordered. But, the Tribunal was not prepared to agree with the reasons
adduced, but ordered withdrawal of 50%. This Court is of the considered opinion that there
is nothing to suspect the reasons put forth. Admittedly, the petitioner-fourth claimant is the
mother of the victim, and she has crossed the age of 60. The reason adduced, is genuine.
Under the circumstances, this Court is unable to agree with the denial of the relief as one
made by the lower Court. Hence, the order of the lower Court is set aside, and the petitioner
is permitted to withdraw the entire amount and utilise the same for the said purpose.
6. Accordingly, this civil revision petition is allowed. No costs. Consequently,
connected CMP is disposed off.
Petition allowed.

[2007 (2) TNCJ 393 (Mad)]

MADRAS HIGH COURT
BEFORE:
M. CHOCKALINGAM, J.
PRABHAKARAN ...Petitioner
Versus
ARSHLEEN ANEJA ...Respondent
[C.R.P. (NPD) No. 1747 of 2007 and M.P. No. 1 of 2007, decided on 29 June, 2007]
th

Tamil Nadu Buildings (Lease and Rent Control) Act, 1960—Sections 10 (3) (a)
(iii) and 25—Revision—Against order of appellate Court affirming order of
eviction—Landlady’s husband was a partner in a firm—Suffered an order of eviction—
Need to shift the business—Landlady has not pleaded that her husband is not in
occupation of any non-residential building of his own—And in the absence of such
pleading the application deserves to be dismissed—In such situation landlady cannot
have an order of eviction—Landlady is not entitled for eviction—Orders passed by
two authorities below are set-aside. (Paras 8 to 10)
Case law.—(2004) 2 MLJ 683.
Counsel.—Mr. T.R. Rajagopalan Senior Counsel for Mr. A. Gandhi, for the
petitioner; Mr. S. Subramanian, for the respondent.
JUDGMENT
M. CHOCKALINGAM, J.—This revision has arisen from an order of the Rent Control
Appellate Authority in RCA No.1384 of 2004 affirming an order of eviction in RCOP
No.787/2003 by the Rent Controller.
2. The respondent-landlady filed the RCOP with the specific averments that the
petition mentioned premises in Door No.834/6, Raheja Complex, Anna Salai, Chennai,
belonged to her; that the revision petitioner-tenant has been making a payment of Rs.4,100/-
per month; that her husband is carrying on a business in the name of Singh Trading Company
in a rented premises; that he is also a partner therein; that the said partnership firm suffered
an order of eviction in CRP No.82/2002 dated 26.4.2002 of this Court; that under the
circumstances, the said partnership firm has to vacate the premises on or before 25.4.2004
and hand over possession; that under the circumstances, it has become absolutely necessary
to shift the business; that the premises in question is required for immediate occupation of the
petitioner’s husband, and hence, an order of eviction was needed for bona fide
requirement.
 3. The application was contested by the revision petitioner- tenant stating that it is a
very small shop having a measurement of 262 sq. ft.; that it was taken on lease about two
decades before; that there was a rental agreement entered into between the parties; that from
time to time, it was renewed; that lastly, it was renewed for a period of three years in 2003;
that under the circumstances, the tenancy agreement is valid till 2006; that there was no
question of filing an application before the end of the period; but, it has been brought forth by
the landlady; that in the instant case, actually there was no need at all; that apart from that,
there was lack of bona fide; that the balance of convenience is not in favour of the landlady;
that in the absence of true and genuine case, it should not be ordered, and hence, the
application was to be dismissed.
4. The Rent Controller, after enquiry, found in favour of the landlady and ordered
eviction. The appeal by the tenant has also met the same fate. Hence, this revision has been
brought forth before this Court.
5. The learned senior counsel arguing for the revision petitioner-tenant raised two
points before this Court. Firstly, there was an agreement between the parties in 2003. The
Rent Control Appellate Authority has also observed in its order that there was an agreement
as pleaded by the tenant. Once it has recorded a finding like that, automatically, the
application should have been dismissed. Secondly, the tenancy period would extend till
2006; but, the RCOP was filed in 2003 itself. Under such circumstances, the order of the
appellate authority has got to be set aside.
6. Added further the learned senior counsel that what was all pleaded by the
respondent-landlady was that the premises was required for her husband, who was a
partner in a firm; that the said business was carried on in a rental premises; that even in the
RCOP, it has been stated that the partnership firm suffered an order of eviction, and
therefore, the business has got to be shifted to the premises in question; that the law would
require that once it is required for any one of the members of the landlord, it should be
specifically pleaded that the person for whose occupation the possession is sought for, was
not owning any other premises; that in the instant case, it has not been specifically pleaded,
and under the circumstances, the petition must fail for the lack of pleading. In support of
his contention, the learned senior counsel relied on a decision of this Court reported in
(2004)2 M.L.J. 683 (Kotti, Kotti Stores v. A.M. Rangabhashyam) and would submit that the
orders of the authorities below have got to be set aside on the above grounds.
7. The Court heard the learned counsel for the caveator. According to him, it has
been specifically pleaded that the landlady’s husband was a partner in a firm, and it also
suffered an order of eviction, and hence, the business was to be shifted, and there are two
shops available, and as far as the shop in question is concerned, the revision petitioner has got
to be evicted in order to carry on the business which is being run by the husband. Added
further the learned counsel that the order of eviction made in the C.R.P. as referred to
above, was also pointed out in the course of the affidavit filed by the respondent before this
Court; that as far as the non-availability of another premises for the husband of the
landlady is concerned, it has been clearly spoken to in the evidence; that under such
circumstances, these contentions put forth by the petitioner’s side do not carry merit, and
hence, the order of the authority below has got to be sustained.
8. After careful consideration of the rival submissions made, this Court is of the
considered opinion that the order of the lower Court has got to be set aside. As far as the first
contention put forth by the petitioner’s side as to the rental agreement is concerned, this
Court has to necessarily disagree with the same. What was all alleged in the course of the
counter statement before the Rent Controller was that there was an agreement between
the parties in 2003, and it can be extended for a period of three years. But, there was no
material at all, except the averment made. In the absence of the same, that contention cannot
be accepted. Hence, that plea fails.
9. As regards the second contention, it would be more apt to reproduce Section 10(3)
(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, as follows:
“Section 10(3)(a)(iii): In case it is any other non-residential building, if the
landlord or any member of his family is not occupying for purposes of a business,
which he or any member of his family is carrying on, a non-residential
building in the city, town or village concerned which is own.”
Once the landlady comes with a case that the premises is required to carry on the
business, it would also be extended to any one of the family members. Here, the landlady
sought for possession of the property for a business to be carried on by her husband. It is also
true that the landlady’s husband was a partner in a partnership firm, which also suffered an
order of eviction in the hands of this Court. It has also been recorded in the said revision.
That apart, the law would require that if a person for whose need the premises is required, has
no other premises, it has to be specifically pleaded. In the absence of the same, it cannot be
accepted, and that too, even in a case where there is bona fide requirement, the pleading must
be strictly made. If not, it can be stated that there is lack of pleading, which would lead to the
dismissal of the application. The decision relied on by the learned senior counsel for the
petitioner and stated supra, has got to be followed in the instant case. Since the landlady has
not even pleaded that her husband is not in occupation of any non-residential building of his
own and in the absence of such pleading, the application deserves to be dismissed as one
meritless. In the instant case, this Court is able to notice lack of pleading. In the absence of
any pleading to that effect, the respondent-landlady cannot have an order of eviction. Under
the circumstances, on the said ground of legal plea of lack of pleading, this Court is of the
opinion that the landlady is not entitled for eviction, which has not been looked into by the
authorities below. Hence, the orders of the authorities below have got to be set aside.
10. In the result, this civil revision petition is allowed setting aside the orders of the
authorities below. No costs. Consequently, connected MP is closed.
Petition allowed.

[2007 (2) TNCJ 397 (Mad)]

MADRAS HIGH COURT
BEFORE:
M. CHOCKALINGAM, J.
T. INDIRA ...Petitioner
Versus
R. DEEPA ...Respondent
[C.R.P. (NPD) No. 748 of 2007 and M.P. No. 1 of 2007, decided on 27 June, 2007]
th

Civil Procedure Code, 1908—Section 115—Revision—Ex parte decree—

Application for setting aside—Delay of 557 days— Condonation refused—Legality
of—Dispute regarding a promissory note for a sum of Rs. 1.00 lakh—Denial by
defendant—No direct service made at any point of time—Substituted service by
affixture and publication in Tirunelveli—Not the place of any one of the defendants—
Petitioner was staying during the relevant period at Madurai seeking job on
compassionate ground on the death of her husband—Substituted service is of no effect
—No service in the eye of law—Court must take a liberal view—Knowledge of
proceeding only after the laying of execution proceedings—Sufficient cause to condone
delay of 557 days—Order impugned set aside—Delay condoned subject to cost of Rs.
2000/-—Revision allowed.
(Paras 6 to 8)
Counsel.—Mr. N. Kannan, for the petitioner; Mr. I.C. Vasudevan, for the respondent.
JUDGMENT
M. CHOCKALINGAM, J.—Challenge is made to an order of the learned Subordinate
Judge, Erode, dismissing an application in I.A.No.43/2006 seeking to condone the delay of
557 days in making an application to set aside an ex-parte decree passed in O.S.No.326/2003.
2. The Court heard the learned counsel on either side.
3. The respondent/plaintiff filed a suit in O.S.No.326/2003 against the revision
petitioner and her children alleging that the husband of the petitioner herein had executed a
promissory note for a sum of Rs.1.00 lakh; but, it was not repaid, and thus, the
defendants were liable to pay. After it was taken on file, due to the non-appearance, the
defendants were set ex-parte, and an ex-parte decree came to be passed on 8.6.2004. The
petitioner along with the minor children filed an application to set aside the ex-parte decree
and along with that, they filed the instant application in I.A.No.43/2006 to condone the delay
of 557 days which occasioned in making the other application. On contest, the application
was dismissed. Hence, this revision before this Court.
4. The learned counsel appearing for the revision petitioner would submit that no one
of the defendants executed the promissory note; that it was the case of the respondent that the
husband of the petitioner had executed the promissory note, and thus, the suit was laid; that
there was no direct service or attempt of service on any one of the defendants at any point of
time; that what was done was only substituted service, according to the plaintiff; that the first
defendant after the death of her husband, came over to Madurai from the native place Erode,
seeking job on compassionate ground in the Railways where her husband was working; that
even the substituted service was not taken to the address where she was living at Madurai;
that from the lower Court’s proceedings, it could be seen that it was taken to Tirunelveli
address where her mother’s house was situated; that she came to know about the proceedings
only after the execution proceedings was initiated in E.P.No.207/2005; that
immediately, she filed the instant application to condone the delay in making an application
to set aside the ex-parte decree, and thus, the delay was neither wanton nor deliberate; that
she had no knowledge about the proceedings, and under the circumstances, the lower Court
should have allowed the application, but dismissed, and hence, the order of the lower Court
has got to be set aside.
5. The learned counsel for the respondent would submit that in the instant case, it is
true that there was a wilful refusal on the part of the first defendant to receive the summons;
that twice it was ordered; but, she refused; that thereafter, substituted service was ordered
by affixture and also by publication; that even then, she did not appear; that it would be
indicative of the carelessness on her part to Court proceedings, and hence, no indulgence
could be shown; that the lower Court considering the same, was not inclined to condone such
a huge delay of 557 days, and hence, the order of the lower Court has got to be sustained.
6. After careful consideration of the rival submissions made, this Court is of the
considered opinion that the order of the lower Court has got to be made undone by upsetting
the order. It is not in controversy that the suit in O.S.No.326/2003 was laid by the
respondent/plaintiff against the defendants. It is also not in controversy that no one of the
defendants executed the promissory note; but, the case of the plaintiff was that the first
defendant’s husband had executed the promissory note. From the impugned order, it could
be seen that no direct service was made at any point of time. It could also be seen from the
available materials that the Court is situated at Erode, and the substituted service by affixture
and publication was made in Tirunelveli. It is also pertinent to point out that Tirunelveli is
not the place of any one of the defendants; but, the mother’s house of the first defendant was
situated at Tirunelveli. From the materials produced by the petitioner, it could be seen that
she was staying during the relevant period at Madurai seeking job on compassionate ground
on the death of her husband, in the Railways. Even the substituted service, though it has
been done, would be of no effect. In a case like this, where an opportunity has to be given to
the defendants to put forth their defence and when it is also further noticed that no direct
service was made and apart from that, when the substituted service was insufficient in the
opinion of the Court, it cannot be termed as service in the eye of law.
7. It is true that there was a delay of 557 days. The Court must take a liberal view in
view of the reasons adduced above. According to the revision petitioner, she came to know
about the proceedings only after the laying of the E.P., and hence, she cannot be imputed
with the knowledge of the proceedings earlier in point of time. Taking the liberal view this
Court is of the considered opinion that the fact that the service is not sufficient and she came
to know about the same only from the execution proceedings, would be sufficient cause to
condone the delay of 557 days. Interest of justice in the above circumstances, would also
require so. Hence, the order of the lower Court has got to be set aside, and the delay of 557
days, though huge, has got to be condoned in view of the reasons adduced above.
Accordingly, it is condoned. While condoning the delay, this Court is of the view that cost
has got to be ordered. Accordingly, a cost of Rs.2,000/- (Rupees two thousand only) is
ordered to be payable by the petitioner directly to the Counsel for the respondent herein
within a period of four weeks herefrom, failing which this revision petition shall stand
dismissed. On such compliance, the lower Court is also directed to dispose of the application
to set aside the ex-parte decree within a period of four weeks therefrom on merits and in
accordance with law.
8. Accordingly, this civil revision petition is allowed. No costs. Consequently,
connected MP is closed.
Petition allowed.

[2007 (2) TNCJ 400 (Mad)]

MADRAS HIGH COURT
BEFORE:
M. CHOCKALINGAM, J.
MUNUSAMY (DECEASED) THROUGH
LRS. AND ANOTHER ...Petitioners
 Versus
KAMALAMMAL (DECEASED) THROUGH LRS. ...Respondents
[C.R.P. (NPD) No. 1334 of 2005 and C.M.P. No. 9773 of 2005, decided on 28 th June, 2007]
Civil Procedure Code, 1908—Section 115—Revision—Against order refusing to
condone delay of 136 days—In moving the applications for setting aside the order of
dismissal of suit for default—Partition suit—First plaintiff an aged lady—Sustained
fracture and was hospitalised —Second plaintiff the only person to look after her
during the relevant time—Counsel could not appear in the case since she delivered
twins and she was advised to take rest—Delay of 136 days is ordinarily neither
inordinate nor in-excusable— Interest of justice require liberal view—Delay condoned
—Suit restored. (Paras 6 and 7)
Counsel.—Mr. S. Subramanian, for the petitioners; No appearance, for the
respondents.
JUDGMENT
M. CHOCKALINGAM, J.—This revision petition challenges an order of the I Assistant
Judge, who was in-charge of II Assistant Court, City Civil Court, Madras, dismissing an
application in I.A.No.8124 of 2004 in O.S.No.8069 of 1991, seeking condonation of delay of
136 days in making an application for the restoration of the suit.
2. The Court heard the learned counsel for the petitioners. There is no representation
on the side of the respondents.
3. It was a suit for partition. The matter was posted in the list on 6.10.2003 for trial.
Due to the non-appearance of the plaintiffs and the fact that there was no representation on
their side by the counsel, the suit was dismissed for default. The plaintiffs filed an
application to set aside the said order. While doing so, there was a delay of 136 days. The
instant application I.A.No.8124/2004 was filed seeking to condone the said delay. The
lower Court has dismissed the application. Hence, this revision before this Court.
4. The learned counsel for the petitioners would submit that it is true that the suit was
dismissed for default on 6.10.2003; that the wife of the deceased-first plaintiff fell ill because
she sustained fracture; that she was hospitalised during the relevant period; that the second
plaintiff was the only person to attend on her; that under the circumstances, they could not
come to Court; that the counsel appearing for them at that time, could not also attend Court as
she delivered twin children, and thus, for the non-appearance, the suit was dismissed for
default; that after ordering notice in the revision, an affidavit of the counsel who appeared for
the petitioners before the lower Court, has also been placed before this Court, as to the
reasons how she could not appear at the time of the hearing; that it is true that there was a
delay of 136 days; but, it was a suit for partition; that if not restored, the plaintiffs would
lose their interest in the property, and under the circumstances, the lower Court should have
considered the reasons adduced and allowed the application, but not done so, and hence, the
order of the lower Court has got to be set aside.
5. The Court looked into the materials available and also considered the
submissions made by the counsel.
6. It was a suit for partition. It is true that the matter was pending from 1991 onwards.
The suit was originally filed by one Munusamy, whose legal representatives were added on
his death in 1999. From the impugned order, it could be seen that the suit was once
dismissed in 1997 when the said Munusamy was alive. On his death, the other plaintiffs were
added as the legal representatives of the deceased plaintiff. It could also be seen from the
materials available that the matter was posted on 6.10.2003 in the list for trial. None of
the plaintiffs was present, and also the counsel did not appear for them on that day.
According to the petitioners, the first plaintiff, the wife of the said Munusamy, is an aged
lady, and she sustained fracture, and she was hospitalised, and the other plaintiff was to look
after her during the relevant time, and as far as the counsel was concerned, she could not
appear since she delivered twins, and at that time, there was complication, and she was
advised to take rest. In order to prove the said contention, an affidavit of the counsel has also
been filed, and it is also looked into. That apart, there was a delay of 136 days in restoration
of the suit, which, in the opinion of this Court, is ordinarily neither inordinate nor
inexcusable. In a case like this and that too in a suit for partition, where the parties have been
prosecuting the case, the delay of 136 days in restoration of the suit, in the opinion of this
Court, has to be viewed liberally, and the interest of justice would also require so. Under the
circumstances, the order of the lower Court is set aside, and the delay of 136 days is
condoned. The lower Court is directed to restore the suit within four weeks from the date of
receipt of a copy of this order and proceed with the suit in accordance with law.
7. Accordingly, this civil revision petition is allowed. No costs. Consequently,
connected CMP is closed.
Petition allowed.

[2007 (2) TNCJ 402 (Mad)]

MADRAS HIGH COURT
BEFORE:
S.R. SINGHARAVELU, J.
SYNDICATE BANK, REP. BY ITS MANAGER ...Appellant
Versus
K. PRAKASH AND ANOTHER ...Respondents
[Appeal Suit No. 150 of 1995, decided on 27 June, 2007]
th

Civil Procedure Code, 1908—Section 96—Money suit— Dismissed against

guarantor—Merely on the finding that guarantor never signed the acknowledgment of
liability—Suit is time barred as it was not filed within three years from the date of
pronote—Appeal—Debt remains the same—Contract regarding liability also remains
the same—Statute of limitation only bars the remedy but does not extinguish debt—So
long as the debt or liability of the principal debtor is alive, the guarantor’s liability also
will survive—No need of separate acknowledgment from the guarantor—Suit to be
decreed in toto—Appeal allowed. (Paras 3 and 13)
Case law.—2001 (1) L.W. 308; AIR 1990 Mad 115; AIR 1980 Ker 190; (1910) ILR 33
Mad 308; 1961 Ker LT 434; ILR 1942 (1) Cal 11.
Counsel.—Mr. K. Chandrasekaran, for the appellant; No appearance, for the
respondents.
JUDGMENT
S.R. SINGHARAVELU, J.—This appeal arises against the judgment and decree of the
learned District Judge, Ootacamund, in O.S.No.260 of 1990 dated 28.02.1992, in dismissing
the suit for money claim against second defendant and decreeing only against first defendant.
Aggrieved over the dismissal of the suit against second defendant, a guarantor, the plaintiff
bank has preferred this appeal.
2. There was an overdraft facility obtained by first defendant from plaintiff bank for
his business and that was made at the instance of the request of first defendant on
19.05.1986. Second defendant guaranteed the repayment of the above said loan.
Therefore, both joined together and executed a pronote on 19.05.1986 for a sum of
Rs.25,000/- in favour of appellant/plaintiff bank and that was marked as Ex.A-2. There was
also a hypothecation deed under Ex. A-3 executed by both as security for the said loan.
Thus, first defendant was the principal debtor and second defendant was only a guarantor.
3. A sum of Rs.1,000/- was repaid by first defendant on 03.02.1987 and there was an
acknowledgment by first defendant, the principal debtor. Construing as a starting period of
limitation, the plaint was filed on 11.12.1990. There was also an acknowledgment of liability
made by first defendant under Ex.P-7, which is dated 11.08.1988. So, the suit was rightly
decreed by construing the starting period of limitation as 11.08.1988 and the suit was
filed within three years thereof. The suit was dismissed as against second
defendant/guarantor because he never signed in Ex.P-7 or on the date of repayment of
Rs.1000/- by first defendant on 03.02.1987. Therefore, it was found by the trial Court that as
against second defendant, the guarantor, the suit is time barred because it was not filed within
three years from the date of pronote (19.05.1986).
4. Learned counsel for the second respondent relied on Mercantile Credit
Corporation Ltd., Tiruchirapalli v. A.Velusamy and another, 2001 (1) L.W.308, wherein it
was held as follows:
“To sum up, the making of an acknowledgment of liability by the principal debtor
viz., the 1st defendant does not involve any variance of the original contract
under Ex.A2 and Ex.A26 within the meaning of Section 133 of the Contract
Act. It also does not involve the making of another contract or a fresh contract
under Sections 134 and 135 whereby the creditor discharges the debtor or makes a
composition with him. In fact the effect of acknowledgment of liability by the 1st
defendant alone under Exs.A-27 to A-38 is just the contrary to the creation of
another contract or fresh contract”.
Of course, in that case, it was held that suit claim as against 2nd defendant guarantor
was barred by limitation.
5. In that case law, reliance was made upon Indian Bank, Madras .v. Krishnaswamy,
AIR 1990 Mad 115 : 1989 (2) L.W.105, where the loan was given by the bank to the mill and
the plaintiff in that suit stood as surety. The mill was subsequently taken over by the
Government and there was a fresh agreement between the Government and the mill, which
was not made known to the surety and therefore it was held that the surety was discharged
from that liability.
6. But in the case of Mercantile Credit Corporation Ltd., (supra) there was no fresh
agreement entered into and the acknowledgment of principal debtor should be treated as that
of the surety as such a finding was given in Wandoor Jupeter Chits (P) Ltd. v. K. P. Mathew,
AIR 1980 Ker. 190, wherein the following observation was made;
“13. Acknowledgment of the debt under Section 18 of Limitation Act, which
provides for a fresh period of limitation, would itself be sufficient in the context of
 a contract of guarantee to keep the surety’s liability alive. Surety’s contract
being separate and collateral could not be equated to that of a co-debtor or joint
contractor within the meaning of Section 20(2) of Limitation Act, so that the surety
could not plead that the written acknowledgment of the debtor could not keep his
surety’s liability alive. The surety could also plead discharge under Section 133 of
the Contract Act since the debtor’s acknowledgment would not create a contract
different from the one of the performance which the surety had guaranteed.”
7. In AIR 1980 Ker. 190, it was observed as follows:
“11. The law of limitation is based on public policy and expediency, and
generally stated, it only disables the litigant who has not been vigilant, from
getting the aid of the State in enforcing his claim. It does not destroy the litigant’s
right, but only puts an end to the accessory right of action. It is procedural,
notwithstanding that in some rare cases like those under Sections 25 and 27 (of the
Act of 1963), rights are sometimes created and sometimes extinguished. In
Mahant Singh v. U.Ba Yi, 43 Cal WN 641: AIR 1939 PC 110, the Privy Council
held that failure to sue the principal debtor till recovery is barred by the statute of
limitation would not operate to discharge the surety, and that when Section 2(j) of
the Contract Act lays down that:
‘A contract which ceases to be enforceable by law becomes void when it ceases to
be enforceable’,
the unenforceability should arise from substantive law, and not from procedural
regulations. The debt remains a debt even when the creditor by reason of a rule of procedure
cannot himself bring an action upon it. In Bombay Dyeing & Mfg.Co. v. State of Bombay,
AIR 1958 SC 328, the Supreme Court held:-
‘Now, it is the settled law of this country that the statute of limitation only bars the
remedy but does not extinguish the debt, Section 28 of the Limitation Act (of 1908,
which corresponds to Section 27 of the present Act) provides that when the
period limited to a person for instituting a suit for the possession of any property
has expired, his right to such property is extinguished. And the authorities have
held—and rightly, that when the property is incapable of possession, as for
example a debt, the section has no application, and lapse of time does not
extinguish the right of a person thereto’.
If a debt barred by limitation is not extinguished, an acknowledgment designed
to place it beyond the pale of unenforceability, cannot certainly after its nature or
character, or that of the contract on which it is founded, so as to enable the surety
to disown his obligation”.
8. Even in Subramania Aiyar v. Gopala Aiyar, (1910) ILR 33 Mad 308, it was
observed as follows:
“Whenever procedural actions are barred, the rights themselves are not
extinguished. Unless a law of limitation operates as well as a law of extinctive
prescription, omission to sue cannot discharge the debtor. Limitation which
merely bars the remedy is never spoken of in modern jurisprudence as a mode of
discharging an obligation. It would therefore seem to follow that, as a mere
omission to sue does not discharge the principal debtor, the surety is not discharged
under Section 134 of the Indian Contract Act. It has been argued that the surety
 will be prejudiced if he is liable to be sued when he cannot have any remedies
against the debtor after a suit against him has become barred. The answer is he is
himself to blame. He can easily avoid the risk and clothe himself with all the
creditor’s rights by payment or performance as soon as the debtor becomes liable”.
9. Therefore, the following was observed in AIR 1980 Ker 190;
“To sum up, the making of an acknowledgment by the principal debtor does not
involve any variance of the contract within the meaning of Section 133 of the
Contract Act. It also does not involve the making of another contract under
Sections 134 and 135 whereby the creditor discharges the debtor or makes a
composition with him. In fact the effect of an acknowledgment is just the contrary.
Nor is Section 137 attracted because it has been held that mere forbearance to sue
even for a time beyond the period of limitation does not operate to discharge the
surety. An acknowledgment does not also impair the remedy of the surety against
the debtor, under Section 139. It follows that there is nothing in Sections 18 and
20(2) of the Limitation Act, or in the relevant provisions of the Contract Act, as
contended for, to render the surety’s collateral obligation unenforceable by reason
of a written acknowledgment by the principal debtor”.
10. Lastly, the ruling laid down in Popular Bank Ltd. v. United Coir Factories, 1961
Ker LT 434, was confirmed in the aforesaid case in AIR 1980 Ker 190.
11. Now, coming to the principal laid down in 1961 Ker LT 434, wherein it was held
that,
“...in respect of any debt incurred by the principal during the currency of the
guarantee, the surety is liable so long as the debt is recoverable from principal; it
does not matter that the principal has kept the debt alive by acknowledgments
under Section 19 of the Limitation Act or by payment under Section 20, for by
these acts, there is no renewal of the debt, and no new debt created which is not
covered by the guarantee. The debt remains the same, namely, the debt guaranteed;
only the bar of time against recovery is postponed. Section 21(2) of the
Limitation Act has no bearing, for a mere surety is not a joint contractor. His is
a separate and collateral contract for the purpose of ensuring that the principal
keeps his contract”.
12. In that case, the first defendant was the principal debtor. The guarantor was the
second defendant. The guarantee bond was executed under Ex.P4. Clause (b) shows that it
is a continuing guarantee determinable only after three months’ notice—there is no case
that it has been so determined—and clause (c) states that the guarantee shall be applicable to
the ultimate general balance. Therefore, it was made clear that in respect of any debt
incurred by the principal during the currency of the guarantee, the surety is liable so long as
the debt is recoverable from principal. It does not matter that the principal has kept the debt
alive by acknowledgment under Section19 of the Limitation Act or by payments under
Section 20, for by these acts, there is no renewal of the debt, and no new debt created
which is not covered by the guarantee. The debt remains the same, namely, the debt
guaranteed; only the bar of time against recovery is postponed. This principle was followed
as laid down in Gana Nath Sen v. Ranjith Roy, ILR. 1942 (1) Calcutta 11. This was
confirmed in later case law 1980 Ker 190, which was followed in 2001(1) L.W.308.
13. In this case also, the debt remains the same and the contract regarding the
liability also remains the same. Because of the subsequent acknowledgment and payment
under Sections 19 and 20 of Limitation Act by first defendant, the principal debtor, the
contract remains the same and what was postponed was the bar of limitation. The statute of
limitation only bars the remedy but does not extinguish the debt. Whenever procedural
actions are barred, the rights themselves are not extinguished. Thus, the payment of first
defendant and the acknowledgment made by him is established and so long as the debt or
liability of the principal debtor is alive, then the guarantor’s liability also will survive. There
need not be any separate acknowledgment from the guarantor. Therefore, there should be
also a decree against the second defendant.
For the reasons stated above, the appeal is allowed and the decree and judgment of the
trial Court are set aside and the suit is decreed as prayed for. No costs.
Appeal allowed.

[2007 (2) TNCJ 408 (Mad)]

MADRAS HIGH COURT
BEFORE:
M. CHOCKALINGAM, J.
KULLAN AND ANOTHER ...Petitioners (in both cases)
Versus
RANIAMMAL (DECEASED) AND OTHERS ...Respondents (in both case)
[C.R.P. (NPD) Nos. 1655 and 1733 of 2007 and M.P. Nos. 1 and 1 of 2007, decided on 26 th
June, 2007]
(A) Civil Procedure Code, 1908—Section 47—Decree of permanent injunction
—Disobedience of permanent injunction— Execution proceedings—Initiation of—Plea
raised that decree was not executable as if there was assignment in favour of the
ancestors but whose name was not mentioned—Contradicting statement of the person
that he had no alias name—An application was filed with intent to defeat the decree—
Court below rightly dismissed the application.
(Para7)
(B) Civil Procedure Code, 1908—Section 47—Execution of decree—Police aid
was ordered to put up fence around the property—Decree of permanent
injunction—Affirmed upto second appellate stage—Disobedience of—Decree holder
desires to put up fence—Obstruction in the way—Police aid sought—Court considered
the reasons for such police force and granted relief asked—Just and legal order—No
interference warranted. (Para 8)
Counsel.—Mr. K.S. Viswanathan, for the petitioners; Mr. N. Damodaran, for the
respondents.
JUDGMENT
M. CHOCKALINGAM, J.—This order shall govern these two civil revision petitions.
2. C.R.P.Nos.1655 of 2007 has arisen from the orders of the learned District Munsif,
Coonoor made in E.A.No.84 of 2004 in E.P.No.54 of 2004, whereby the police aid was
ordered, pursuant to the decree passed in O.S.No.43 of 1984, while the other C.R.P.No.1733
of 2007 has been preferred against the order of dismissal in E.A.No.156 of 2004 in the said
E.P.
3. The Court heard the learned counsel on either side. In O.S.No.43 of 1984 on the file
of the said Court, pursuant to the decree passed, the same was challenged by the
petitioners in A.S.No.18 of 1985 and the same was dismissed. Subsequently, it was also
appealed against in this Court in the second appeal and the same was also dismissed,
affirming the judgment of the Court below. It was a suit for permanent injunction, alleging
that the first respondent and on her death, her legal representatives have been in
possession that too in lawful possession of the property. The suit, on contest, was decreed
and it culminated in the judgment of this Court, affirming the judgment of the Court below.
The decree holder laid E.P.No.54 of 2004, alleging that there was disobedience of
permanent injunction order by the respondents/defendants and under these circumstances,
this has got to be dealt with in accordance with law. While it was pending, they filed
E.A.No.84 of 2004, seeking police aid in order to put up fence around the property, which
was the subject matter in O.S. No.43 of 1984. It was contested and the same was ordered.
While the matter stood thus, the revision petitioners, who are the original defendants and
judgment debtors, filed E.A.No.156 of 2004 under Section 47, C.P.C., alleging that the
property in question was originally assigned in favour of ancestors of the first petitioner
Kullan and he was also called as Rajkambattan. Actually, the property has been in enjoyment
for the past more than 25 years with them and earlier, there was an assignment made in
favour of hill tribe and hence, no question of conveyance or retransfer would arise. The E.A.
was filed to receive the documents and the application was allowed and the documents were
marked. All would go to show that there was assignment in favour of ancestors of the first
petitioner and thus, it has come to him by operation of law and the first petitioner has been in
possession of the property for more than 25 years and under these circumstances, this was not
focused in the earlier proceedings. Section 47, CPC application was filed, but the same was
dismissed.
4. The contentions put forth by the learned counsel for the revision petitioners is that
there was originally an assignment in favour of the Hill tribe ancestors of the first petitioner
Kullan; that the documents would clearly reveal that the property has come to the hands of
the first petitioner, who is having alias name Rajkambattan and thus, he has been in
possession of the property, pursuant to the assignment made in favour of hill tribe ancestors;
that the same was not brought to the notice of the Court on earlier occasions; that all
documentary evidence have been brought forth and thus, the decree originally passed has
become unenforceable and inexecutable and that all these aspects have not been considered
by the lower Court and thus, it is a case where the order of the lower Court has got to be set
aside. Added further the learned counsel that originally what was sought for was only
permanent injunction and this has also been granted, but now, they wanted to convert the
same to mandatory injunction and they wanted to fence the property, which is in possession
of the petitioners herein and under these circumstances, the lower Court should not have
ordered for police aid for an unlawful act and hence, that order has got to be set aside.
5. The Court heard the learned counsel for the respondents on the above contentions.
The learned counsel for the respondents would submit that originally, a suit in O.S. No.43 of
1984 was filed and the matter was pending for past two years. The suit was originally
decreed before the District Munsif, Coonoor, which was appealed against by the petitioners
herein before the District Court in A.S.No.18 of 1985 and the same was also dismissed.
Thereafter, second appeal has been preferred before this Court and the same also met the
same fate and now, the decree was put in execution and the execution was sought for in view
of the disobedience of the order of the Court. What was contended by the
respondents/plaintiffs in the suit was that they have been in lawful possession of the property
and this has been recognised by the Court, despite contest made by the opposite party,
namely the revision petitioners herein. Now, they have raised a new plea as if there was
assignment in favour of hill tribe ancestors, whose name was not mentioned, but they have
filed an application under Section 47, CPC. The lower Court has considered all these aspects
of the matter and hence, both the orders of the lower Court have got to be sustained.
6. After careful consideration of the rival submissions made, the Court is of the
considered opinion that both the civil revision petitions have got to be dismissed.
Admittedly, it was a suit for permanent injunction filed in O.S.No.43 of 1984 and a decree
was passed. The revision petitioners took it on appeal in first appeal and on dismissal of the
first appeal, the second appeal was filed before this Court and the same was also dismissed.
Thus, the proceedings have been pending for nearly about two decades.
7. The contention is that the first petitioner Kullan was the descendant of hill tribe and
there was assignment in favour of the ancestors and thus, the property became not
transferable and it has come to the hands of the first petitioner and he has been in possession
for a long period. It is to be pointed out that had it been true that he was conscious of the fact
that he has been in possession of the property, pursuant to the assignment in favour of the
ancestors, he would have spelt out the same at least at any stage in the past two decades, but
not done so. Secondly, when the documentary evidence adduced, the documents were
actually considered by the lower Court. It has to be pointed out that the documents would
bear the name of descendants of so called ancestors, namely Rajkambattan. But, it is to be
pointed out that when the matter was pending in Court on earlier occasion, Kullan, the first
petitioner was examined as D.W.1, who has categorically stated that he had no alias name
Rajkambattan and under these circumstances, even the documents were of no avail to the
petitioners to show that he was either the descendants of the original assignee or he is the
person, who claims the property. Apart from that, when the matter was agitated for the past
two decades, it has not been whispered at any point of time. But, for the first time, when the
matter was put in execution, such an application that too under Section 47, C.P.C. has been
filed, alleging that the decree was not executable as if there was assignment in favour of the
ancestors, but whose name was not made mentioned. The name of Rajkambattan was found
in the document, but in the evidence, he has given a statement contra that he had no alias
name, namely Rajkambattan. All would go to show that it was nothing, but an application
was filed to defeat the decree, but in vain. The lower Court was perfectly correct in
dismissing the application.
8. So far as E.A.No.84 of 2004, seeking police aid, is concerned, the Court is of the
considered opinion that the lower Court was perfectly correct in doing so, because when
permanent injunction was granted, it was affirmed by this Court. There was disobedience
and E.P. was filed to take necessary action against the judgment debtor. The decree holder
desires to put up fence and since he found obstruction, the decree holder came to the Court
for getting police aid for carrying out the work. The lower Court has considered the reasons
for such police aid and has granted the relief as one asked for and warranted. Under these
circumstances, this Court is unable to see any merit in both the civil revision petitions. Both
require an order of dismissal. Accordingly, both the civil revision petitions are dismissed.
No costs. Consequently, connected MPs are also dismissed. All or any one of the
observations made by this Court earlier will not stand in the way of the petitioners in either
filing a suit or putting forth their contentions or getting the relief, if so advised.
 Petitions dismissed.

[2007 (2) TNCJ 412 (Mad)]

MADRAS HIGH COURT
BEFORE:
M. CHOCKALINGAM, J.
P. GANESAN ...Petitioner
Versus
P.R. LAKSHMANAN ...Respondent
[C.R.P. (NPD) No. 1502 of 2007 and M.P. No. 1 of 2007, decided on 28 June, 2007]
th

(A) Tamil Nadu Buildings (Lease and Rent Control) Act, 1960—Section 25—
Revision—Against order confirming order of eviction—Legality of—Payment of rental
to landlord not disputed—Landlord tenant relationship exists—Act of 1946 extended
over Town Panchayats in view of G.O.Ms. No. 911 Development on 3 rd March, 1947—
Act of 1960 continued to apply—Rent Controller had jurisdiction to pass orders—
Landlord desirous to have the building in dispute for his own use after demolition and
the construction—Real need shown for use and occupation of the premises being
occupied by the tenant—No impediment in granting eviction— Building was old
proved by surveyor—Applied for approval of the plan for the purpose of reconstruction
—Not for letting out to any body but for his own occupation—Decision to evict based on
material available on record—Sustainable—No interference warranted—18 months’
reasonable time allowed to tenant to vacate the premises subject to undertaking.
(Paras 7 to 11)
(B) House and rents—Bona fide—Of landlord for demolition and reconstruction
—Necessary parameters to be proved— Enumerated.
(Para 8)
Counsel.—Mr. T. Dhanyakumar, for the petitioner; Mr. G. Jeremiah, for the
respondent.
JUDGMENT
M. CHOCKALINGAM, J.—This civil revision petition has been brought forth by the
tenant aggrieved over the judgment of the Rent Control Appellate Authority, Ranipet made in
RCA.No. 6 of 2004, whereby, the order of eviction made by the Rent Controller, Sholinghur
made in RCOP.No.6 of 1999 was affirmed.
2. The respondent filed the said RCOP. No.6 of 1999 for eviction on two grounds.
Firstly, the shop premises occupied by the tenant was required for his personal use and
occupation and secondly it was required for the purpose of demolition and
reconstruction. The case of the respondent/ landlord was that he has purchased the property,
which consists of number of shop premises and out of those, one shop was being occupied by
the revision petitioner/ tenant on monthly rental basis and the landlord has been carrying
on business in plywood and glass articles in a rented premises, that there is a dispute
between himself and the owner of the place, where he is carrying on business. Under the
circumstances, he has to shift his business to his own property. Thus the premises was
required for his own use and occupation. Further the present building has got to be
demolished and reconstructed. It is true that the respondent/ landlord was having Kalyana
Mandapam from 1993 onwards. But that Kalyana Mandapam cannot be used for carrying on
his business and except that, he had no other property. Hence, eviction has to be ordered.
3. This application was resisted to by the petitioner/ tenant on different grounds that
the Rent Controller had no jurisdiction to entertain the application since the Tamilnadu
Buildings and Lease Control Act has no application to Sholinghur, that there was no bona
fide on the part of the landlord for seeking eviction on the ground of demolition and
reconstruction, that in the eviction application both the grounds viz., for personal use and
occupation and for demolition and reconstruction, are inconsistent with each other and lastly
he had neither sufficient means nor the building sought to be demolished was old.
Hence, the petition was to be dismissed.
4. The Rent Controller, on enquiry, found that the eviction was to be ordered and
accordingly ordered. Aggrieved, the tenant, took it on appeal in RCA.No.6 of 2004. But the
same was also dismissed. Aggrieved tenant has brought forth this civil revision petition.
5. Advancing the arguments on behalf of the revision petitioner/ tenant, the learned
counsel would submit that the Rent Controller had no jurisdiction to entertain the application,
that even in the Rent Control Act, it has been made clear that it is applicable to Corporation
and Municipalities and the said Act came to be enacted in the year 1960. But the District and
Municipalities Act was extended to three places including Sholinghur only on 14.6.2004 and
thus, the provisions of Rent Control Act cannot be made applicable at all. It is an admitted
case that the landlord is carrying on his business in a place where he claimed that the super
structure belonged to him, and therefore, there was no need for him to evict the tenant and
occupy the present place. Added further, both the grounds, viz., personal use and
occupation and also demolition and reconstruction cannot exist together. In so far as the
ground of demolition and reconstruction is concerned, the building is not proved to be old
and it is not shown that sufficient means are available for raising construction and it is
nothing but the landlord’s intention to evict the tenant. Without considering this aspect
legally and factually, both the authorities below have ordered eviction. Hence, the orders of
lower Court are liable to be set aside.
6. Contrary to the above, it is submitted by the learned counsel for the respondent/
landlord that there is no quarrel that the provisions of the Act could be applied to the
Corporation and Municipalities and there was a Government Order passed in the year
1946 in G.O.Ms.No.911 Development on 3rd March, 1947, wherein it has been made clear
that Madras Buildings (Lease and Rent Control) Act, 1946 are extended to Town
Panchayat also and in that Government Order, it was made clear that the expression of Town
Panchayat wherever it occurs, the expression Third Grade Municipalities should be
substituted. Thus the Act had been made applicable to Sholinghur, a Town Panchayat and
from the time onwards it has been so applied till this date and it is not the District
Municipalities Act which was extended to Third Grade Municipalities including the
Sholinghur on 14.6.2004. Even though this Act has been in operation for the past 5 or 6
decades, so far as Third Grade Municipalities is concerned, the said Act was extended so
from the time of the passing of the Government Order in 2004. Even from the passing of the
new Act, 1960, it has been continuously in force and under the circumstances, the contention
was negatived by the authorities below and it is an admitted fact that he is carrying on his
business in plywood and glass in a rental premises by paying rent and under the
circumstances, he required the place for raising new construction and occupying the same.
Further it is also an admitted fact that the respondent landlord owned a Kalyana Mandapam
which cannot be put in use to carry on his business and that the landlord is having no other
property or premises which was never rebutted by the opposite party. Under the
circumstances, he has to evict the tenant from the property and also demolish the same for
construction for his occupation. For the ground of demolition and reconstruction, the landlord
examined a surveyor, who has spoken about the oldness and age of the building. Under the
circumstances, the authorities below have considered the aspect of the matter and
accordingly, ordered eviction, which has got to be sustained.
7. After careful consideration of the submissions made by the learned counsel on either
side, the Court is of the considered opinion that the order of eviction passed by the authorities
below has got to be sustained. It is not in controversy that the respondent has been making
payment of rental to the landlord and thus the landlord-tenant relationship is an admitted
position. According to the learned counsel for the tenant/ revision petitioner, the Rent
Controller had no jurisdiction since the Act was applicable only to corporations, cities and
also to District Municipalities and Municipal Town. It was also contended that the District
Municipalities Act was extended to three places in 2004 including Sholinghur. At this
juncture, it is pertinent to point out that it was brought to the notice of the authorities below
that a Government order was passed in the year 1946, wherein it was clearly mentioned that
Tamil Nadu Buildings (Lease and Rent Control) Act was extended to town panchayats and
wherever it occurred as Town Panchayat under the Municipalities Act, the word Third
Grade Municipalities must be substituted. It is not in controversy that even from the
passing of the Act, 1960, the G.O. has been followed and it has been continued till the filing
of RCOP, all along the period for the past 50 years. Hence, the contention put forth by the
learned counsel for the respondent was rightly rejected by the authorities below. In such
circumstances, the contention that the Rent Controller had no jurisdiction, has got to be
discountenanced.
8. The second contention that the landlord lacked bona fide while seeking eviction on
the ground of immediate demolition and reconstruction has got to be rejected. It is an
admitted position that the landlord was occupying the premises on rental basis for carrying on
his business and though he has owned Kalyana Mandapam, it is needless to say that the said
property cannot be used to carry on the business. Under the circumstances, his desirous is to
have the building in question for his own use and at the same time, he has also expressed
that the building has got to be demolished for the purpose of his own use and occupation.
When there is a real need shown by the landlord for his use and occupation of the premises,
being occupied by the tenant, which requires demolition and reconstruction for the
occupation by the landlord, there cannot be any impediment in granting eviction. In a given
case, so far as bona fide of the landlord for demolition and reconstruction is concerned, he
has to prove the necessary parameters. Firstly, the fact that the building was old was proved
by examining a Surveyor. Apart from this, whether he is having sufficient means was not a
factor in question. Further, he has also applied for the approval of the plan for making a
new construction and thus, it is proved that he required the premises for the purpose of
reconstruction and not for letting out to anybody, but for his own occupation. Under such
circumstances, both the authorities below have gone into these questions and taken a correct
decision which, in the opinion of this Court, does not require any interference and the
eviction order passed by the authorities below, is sustained.
9. At this juncture, the learned counsel for the revision petitioner would submit
that the revision petitioner/ tenant should be given sufficient time to find out a suitable
accommodation to shift his business and hence, he should be given three years time. The
learned counsel for the respondent would submit that anticipating the proceedings for the past
eight years, it is true that a reasonable time has got to be given, and three years period will be
a too long one.
10. Considering the facts and circumstances of the case, the Court is of the considered
opinion that reasonable time in the instant case would be one year. Taking into consideration
the cumulative facts and circumstances of the case, for a non residential premises, where the
revision petitioner is carrying on his business, the Court feels that it is a fit case where 18
months time would be a reasonable period for vacating and handing over possession.
Therefore, the tenant is directed to file an undertaking affidavit to make the arrears of
rental and also to continue to pay the rent till the time of vacating and handing over
possession. The petitioner undertakes to file the said affidavit within a period of two weeks
here from.
11. With the above observation, the civil revision petition is dismissed. No costs.
Consequently, connected MP is also dismissed.
Petitions dismissed.

[2007 (2) TNCJ 417 (Mad)]

MADRAS HIGH COURT
BEFORE:
M. CHOCKALINGAM, J.
BALU @ BABU MUNUSAMY (DECEASED)
THROUGH LRS. AND OTHERS ...Petitioners
Versus
MARIA CONCHITA SAM @ MARIA
SHROFFE AND ANOTHER ...Respondents
[C.R.P. (NPD) Nos. 792 to 797 of 2007 and M.P. Nos. 2 to 2 of 2007, decided on 6 th July,
2007]
Tamil Nadu Buildings (Lease and Rent Control) Act, 1960—Section 25—Revision
—Against order affirming the eviction— Legality of—Purchase of property from the
original owner proved by landlord—Landlord-tenant relationship—Sufficient material
to prove—Once there was recognition of landlord by the tenant and rental payments
were also made—Tenants are estopped from questioning the same—Denial of title
not supported by material on record—Plea of adverse possession rightly rejected—
Finding based on assessment of evidence—No interference warranted—Tenant allowed
sufficient time to vacate the accommodation.
(Paras 7 and 8)
Counsel.—Mr. G.K.R. Pandiyan, for the petitioners; Mr. N. Thiagarajan, SC for Mr.
N. Kishore, for the respondents.
JUDGMENT
M. CHOCKALINGAM, J.—This order shall govern the above civil revision petitions,
six in number.
 2. Challenging an order of the learned Rent Control Appellate Authority, namely VIII
Court of Small Causes, Chennai, these civil revision petitions have been brought forth.
3. The Court heard the learned counsel on either side. Originally, the respondents
filed 16 RCOPs before the Rent Controller, seeking eviction of the tenants on the ground of
wilful default, alleging that there was rental arrears from August, 1998 to December,
1998; that on 16 RCOPs., on enquiry, eviction was ordered; that all of them took it by way of
16 RCAs. and the order of the Rent Controller was affirmed on 11.4.2005; that out of 16
tenants, 11 preferred revision petitions before this Court; that a conditional order, at the
time of initiation of proceedings before this Court for depositing the arrears of rent was made,
but it was complied by the revision petitioners herein and so far as the other revision
petitioners are concerned, they have not complied with the order and under these
circumstances, those petitions were dismissed and that so far as the above civil revision
petitions are concerned, the Court heard the learned counsel on either side and the following
order is passed.
4. The landlord/respondents herein filed RCOPs stating that the properties originally
belonged to one Natesa Pillai; that he mortgaged the properties to one Flora Sam; that in
view of non payment of mortgage amount, the properties were brought for sale; that one
Renugopal Mudaliar has purchased the properties on Court auction sale; that out of the said
properties, a larger extent of 1359 sq. ft. area along with thatched hut were sold by
Renugopal Mudaliar to the landlord/the respondents herein; that till July, 1998, rental
payments were made and thereafter, there was no payment of rental and there was notice
issued; that some of them received, but not replied and some of them refused to receive the
same and under these circumstances, there arose a necessity for the landlord to file RCOPs
for eviction. All the tenants had a common defence, stating that they have been in the
property for the past four decades and they raised superstructure; that the properties neither
belonged to the landlord nor there was any mortgage or sale of the property on Court auction;
that the said Renugopal Mudaliar did not become the owner of the property on Court auction
sale; that he did not execute sale deed in favour of the landlord and there was no landlord and
tenants relationship between them and that all the petitions were to be dismissed. The
evidence was adduced on both sides. After hearing both sides, the Rent Controller has passed
an order of eviction. Aggrieved all the tenants took it on appeals and the appeals were
dismissed. Not satisfied with the order of the Appellate Forum, the tenants have brought forth
these civil revision petitions before this Court.
5. The only contention that was raised by the learned counsel for the revision
petitioners was that in the instant case what was stated before both the forum was there was
no tenant landlord relationship; that the title of the landlord was denied; that when the title
of the landlord was denied, a specific question as to the denial of title should have been
raised and it should have been answered with a specific finding; and that it has not been done
so and under these circumstances, not only the order of the Rent Controller, but also the order
of the Appellate Forum were defective in nature. Added further the learned counsel that
in the instant case, the tenants were able to show that they had electric service connection;
that there were writ petitions filed, when there was denial by the Electric Department to
give electric service connection and thus, there was no payment of rental at any point of time
and under these circumstances, factually also, the landlord and tenant relationship has
not been proved by the respondents herein and under these circumstances, the orders of the
authorities below have got to be set aside.
 6. The learned senior counsel for the respondent, on the contrary, would submit
that in the instant case, the petitioners herein were examined and for payment of rental,
acknowledgements thereon were also brought to the notice of the lower Court and there were
exchange of notices; that originally, notice was received in two cases by the respective
fathers of R.W.1 and R.W.2 and it is also admitted; that even there was communication
addressed by them; that it is pertinent to point out that so far as these revision petitioners are
concerned, all were denied electric service connection; that when there was denial, they filed
writ petitions before this Court; that on coming to know about the same, the landlord
intervened by filing an application to implead; that the landlord was also impleaded; that
the Court came to the conclusion that they are all tenants and without the consent of the
landlord, they sought for electric service connection and they were not entitled to for the
same and so saying, the writ petitions were dismissed by this Court; that it was a case where
there was denial of title without any basic material at all; that in a case where the denial of
title is bona fide, such a finding could be given and in the instant case, it is not a bona fide
denial; that the tenants made a feeble attempt to deny the same and under these
circumstances, all these aspects have considered by the authorities below and an order of
eviction has been passed and it has got to be sustained.
7. After careful consideration of the rival submissions made, the Court is of the
considered opinion that the order passed by the Appellate Forum, affirming the order of the
Rent Controller, has got to be sustained. As on today, it would be quite evident from the
materials available that the respondents/landlord have proved that they purchased the
property from the original owner and thus, so far as the question of landlord and tenant
relationship was concerned, sufficient materials were placed and they were perused and
scrutinised by the authorities below and they have also found that there was landlord and
tenant relationship between the parties. Apart from that, the documentary evidence were also
produced in respect of recognising the respondents herein as landlord to the properties in
question. The other contention of the learned counsel for the revision petitioners that once
there was bona fide denial of title, the authorities below should have recorded a specific
finding in that regard, but not done so and hence, the orders of the authorities below were
infirm and defective and they have got to be set aside cannot be countenanced at all. In the
instant case, once there was recognition of landlord by the tenant and rental payments were
also made and it was evident from the documentary evidence, the tenants are estopped from
questioning the same and without any material, the revision petitioners have denied the title
of the landlord. The mere filing of counter in a case, seeking for eviction, would not be
sufficient to raise the question and record a finding as to whether there was bona fide denial
of title or not. But, in the instant case, there was no material placed before the authorities
below. Further, the plea of adverse possession raised by the tenants before the authorities
below have been rightly rejected. Under these circumstances, the Court is of the considered
opinion that the orders of the authorities below have got to be sustained.
8. At this juncture, the learned counsel for the petitioners would submit that the tenants
are in huts for more than 40 years and hence, sufficient time has got to be given for them to
get a suitable accommodation and that too in a city of Madras. The learned senior
counsel for the respondents would submit that there is no objection for granting a reasonable
time. Taking into consideration the facts and circumstances of the case and the tenants have
been in the property for four decades and they are actually residing in the huts in the city
of Madras, the Court is of the considered opinion that they have got to be given sufficient
time to get suitable accommodation. Accordingly, nine months time is granted to the revision
petitioners/tenants to vacate the premises and hand over the same to the landlord. The
revision petitioners are directed to file an undertaking affidavit to that effect within a period
of two weeks herefrom. Accordingly, these civil revision petitions are disposed of. No
costs. Consequently, connected MPs are closed.
Petitions disposed of.

[2007 (2) TNCJ 421 (Mad)]

MADRAS HIGH COURT
BEFORE:
A. KULASEKARAN, J.
BOARD OF TRUSTEES OF CHENNAI PORT
TRUST REP. BY ITS CHAIRMAN ...Petitioner
Versus
M/S. IRCON INTERNATIONAL, CHENNAI AND OTHERS ...Respondents
[W.P. No. 31889 of 2006, decided on 3rd July, 2007]
(A) Words and phrases—Expression—Litigation—Means—A legal action
including proceedings initiated in Court of Law or Tribunal.
(Para 9)
(B) Fundamental feature—Common to both the Courts and Tribunals—
Discharge judicial functions and exercise judicial powers which inherently vest in a
sovereign State. (Para 11)
(C) Arbitral Tribunal—Nature of—Arbitral Tribunal is not a tribunal because
the State has not vested it with its inherent judicial power and the power of
adjudication which it exercises is derived by it from the agreement of the parties.
(Paras 10 and 11)
(D) Constitution of India, 1950—Article 226—Arbitration and Conciliation Act,
1996—Scheme of—Intervention under writ jurisdiction—Discussed.
(Para 12)
(E) High Power Cabinet Committee—Constitution of— Purpose.
(Para 5)
Case law.—1995 (Supp.) (4) SCC 541; (2004) 6 SCC 437; 2005 (8) SCC 618; 2006
(5) CTC 357; (2004) 6 SCC 431; (2004) 6 SCC 437; (2006) 4 SCC 780; AIR 1963 SC 874.
Counsel.—Mr. R. Karthikeyan, for the petitioner; Mr. T. Poornam for the respondent
No. 1.
JUDGMENT
A. KULASEKARAN, J.—The petitioner has come forward with this writ petition
praying for a writ of certiorarified mandamus calling for the records in the matter of
Arbitration between M/s. Ircon International and Sree Bhavani Builders and Chennai
Port Trust and quash the order passed on the said proceedings dated 16.04.2006 and
consequently refer the dispute to the High Power Cabinet Committee as per the Supreme
Court Judgment stated supra and the Office Memo dated 31.12.1991 issued by the
Government of India.
2. The petitioner is a public sector undertaking governed by Major Port Trusts Act,
1963 and is controlled by Ministry of Shipping, Road Transport and Highways,
Government of India. The first respondent is a joint venture, in which M/s. Ircon
International is a public sector undertaking owned by the Government of India and Sree
Bhavani Builders, a Partnership firm. The petitioner invited tenders for the construction of
extension of container terminal berth at Bharathi Dock during June 1998 in which, 11
persons, including the first respondent participated and that the first respondent was “L3”.
On the representation of the first respondent, the Ministry of Shipping, Road Transport and
Highways issued a letter dated 22.07.1998 requesting the tender committee of the
petitioner to consider the first respondent as it is a Government of India undertaking. The
first respondent also sent a letter dated 20.07.1998 requesting the petitioner to consider its
representation as per the Government policy circulated by the Ministry of Industry,
Department of Public Enterprises, New Delhi dated 31.10.1997 and the subsequent
amendment dated 10.02.1998. The petitioner issued a letter dated 18.08.1998 to the first
respondent to match the lowest evaluated offer of ‘L1" which was agreed and the said
contract was awarded to it. The first respondent could not complete the work within the
stipulated period but completed it after lapse of 14 months 3 weeks, hence, the petitioner
deducted a sum of Rs.1,89,56,740/- payable to it. The first respondent claimed
Rs.23,69,26,005/- from the petitioner with interest at 18% and raised the present dispute
before the Arbitral Tribunal consisting of respondents 2 to 4 for recovery of the above said
amount. The petitioner filed a memo dated 10.02.2006 before the Arbitral Tribunal that both
the petitioner and M/s. Ircon International are public sector undertakings, hence, the dispute
to be referred to Cabinet Committee constituted by the Government of India as per the
directions of Hon’ble Supreme Court in ONGC v. Collector of Central Excise reported in
1995 (Supp) (4) SCC 541, as well as Official Memorandum dated 31.12.1991 of
Government of India praying it to refer the dispute to the high powered committee and
keep the matter in abeyance till clearance of the dispute by the said committee, which was
dismissed by the Arbitral Tribunal on 16.04.2006. Challenging the said order, the present
writ petition has been filed.
3. Learned counsel appearing for the petitioner submitted that the order of the Arbitral
Tribunal is contrary to law and devoid of merits; that the Honourable Supreme Court held
clearly that whenever a dispute arose between two public sector undertakings, to be
referred to a Cabinet Committee so that unnecessary litigation be avoided, which was not
considered by the Arbitral Tribunal; that the work was entrusted to the first respondent as it is
a public sector undertaking, hence, they are bound to go before the Cabinet Committee;
that the judgment of Arbitral Tribunal is to be enforced as a Civil Court decree and the
Tribunal is an alternative disputes redressal forum, that is, a substitute to regular Court of law
and its judgment be enforced as a Civil Court decree, hence, the definition Tribunal covers
the Arbitral Tribunal also; that the observation of the Arbitral Tribunal that it not comes
under the definition of Tribunal is incorrect; In support of his contentions, the learned
counsel relied on the decision of the Honourable Supreme Court reported in (Oil & Natural
Gas Commission v. Collector of Central Excise) (2004) 6 SCC 437, wherein in Para Nos. 2, 4
and 7, it was held thus:-
 “2. The relevant portion of the memo referred to in the course of this Court’s order
dated 11-10-1991 reads: (SCC p. 541, para 2)
‘It is in this context that the Cabinet Secretariat has issued instructions from time to
time to all departments of the Government of India as well as to public sector
undertakings of the Central Government to the effect that all disputes,
regardless of the type, should be resolved amicably by mutual consultation or
through the good offices of empowered agencies of the Government or through
arbitration and recourse to litigation should be eliminated.’
4. There are some doubts and problems that have arisen in the working out of these
arrangements, which require to be clarified and some creases ironed out. Some
doubts persists as to the precise import and implications of the words ‘and
recourse to litigation should be avoided’. It is clear that the order of this Court is
not to the effect that ‘nor can that be done’ so far as the Union of India and its
statutory corporations are concerned, their statutory remedies are effaced. Indeed,
the purpose of the constitution of the High-powered committee was not to take
away those remedies. The relevant portion of the order reads: (SCC pp.541-
42, para 3)
‘3. We direct that the Government of India shall set up a committee consisting of
representatives from the Ministry of Industry, the Bureau of Public Enterprises and
the Ministry of Law, to monitor disputes between Ministry and Ministry of the
Government of India, Ministry and Public sector undertakings of the Government
of India and public sector undertakings in between themselves, to ensure that no
litigation comes to Court or to a tribunal without the matter having been first
examined by the committee and its clearance for litigation. The Government may
include a representative of the Ministry concerned in a specific case and one from
the Ministry of Finance in the committee. Senior officers only should be
nominated so that the Committee would function with status control and
discipline.’
It is abundantly clear that the machinery contemplated is only to ensure that no
litigation comes to Court without the parties having had an opportunity of
conciliation before an in-house committee.
7. However, as to what the Court or tribunal should do if such judicial remedies are
sought before such a court or tribunal, the order of 11-10-1991 clarifies (SCC
p.542, para 4)
‘4. It shall be the obligation of every Court and every tribunal where such a
dispute is raised hereafter to demand a clearance from the Committee in case it has
not been so pleaded and in the absence of the clearance, the proceedings would not
be proceeded with.’
Relying on the above said decision of the Honourable Supreme Court, the learned
counsel for the petitioner submitted that no dispute between ministry and a ministry of the
Government of India, a ministry and a public sector undertaking of the Government of India
and between public sector undertakings themselves shall come to Court or to a Tribunal
without the matter having been first examined by the high powered committee
constituted under the Chairmanship of Cabinet Secretary, based on the judgment of the
Honourable Supreme Court, the Government of India also issued OM dated 31.12.1991 to all
departments and public sector undertakings regarding reference and settlement of disputes,
hence, the petitioner has filed the memo requesting the Arbitral Tribunal to refer the dispute
to the high powered committee and keep the matter in abeyance till clearance of the
dispute by the said high power committee is granted, but the Arbitral Tribunal failed to
consider the above said facts and rejected the memo and prayed for quashing of the
impugned order.
4. The learned counsel appearing for the first respondent submitted that the writ
petition is not at all maintainable; that the stakes in their joint venture between M/s. Ircon
International and Sri Bhavani Builders are in the proportion of 22:78, hence, the private
party namely M/s. Sri Bhavani Builders, cannot, by any stretch of imagination be said to be
within the meaning of Public Sector Undertaking. The issues involved in the writ petition
relating to private disputes between the parties under a contract and are not in the realm of
public law. The third and fourth respondents have been appointed as arbitrators by the
parties, following arbitration clause in the contract; that the respondents 3 and 4 in turn
appointed the second respondent as Presiding Arbitrator; that the writ petition has been filed
against the decision of the Arbitral Tribunal passed under Section 16 of the Arbitration and
Conciliation Act, 1996, (hereinafter referred to as ‘the Act’) which is a complete code in
itself and it sets out the procedures to be followed; that Section 5 of the Act specifically
prohibit interference by a Court of law in matters governed by Part I of the Act except where
so provided in the said part. Section 16 (5) of the Act specifically provides that
where an Arbitral Tribunal takes a decision rejecting the plea it shall continue with the
arbitral proceeding and make an arbitral award; that Section 16 (6) of the Act provides that a
party aggrieved by such an arbitral award may make an application for setting aside the same
under Section 34 of the Act. Section 37 (2) of the Act, which provides for appeals against
orders does not provide for an appeal against an order rejecting a plea under Section 16 of the
Act, hence, the writ petition, challenging the order passed by the Arbitral Tribunal under
Section 16 is not at all maintainable; that arbitration clause is available in the agreement
between the parties, hence, M/s. Ircon International has appointed its arbitrator,
thereafter, the petitioner had actively participated in the appointment process,
appointed an arbitrator and the matter was pending for constitution of Arbitral Tribunal for
two years, but the petitioner not raised any objection nor relied on the Official
Memorandum, which was issued in the year 1991, thus, the petitioner submitted to the
jurisdiction of the Arbitral Tribunal and that when once Arbitral Tribunal takes a decision
rejecting the plea, the Arbitral Tribunal continue, no appeal against the said decision under
Section 37 is available and the only remedy is to challenge the final award under Section 34
of the Act. In any event, the writ petition challenging the order passed under Section 16 of
the Act is not maintainable and prayed for dismissal of the writ petition. In support of this
contention, the learned counsel for the first respondent relied on the below mentioned
judgment of the Honourable Supreme Court:—
(i) SBP & Co. v. Patel Engineering Limited and another, 2005 (8) SCC 618, wherein
in Paras 45 and 47, it was held thus:—
“45. It is seen that some High Courts have proceeded on the basis that any order
passed by an Arbitral Tribunal during arbitration, would be capable of being
challenged under Article 226 or 227 of the Constitution. We see no warrant for
such an approach. Section 37 makes certain orders of the Arbitral Tribunal
appealable. Under Section 34, the aggrieved party has an avenue for ventilating its
grievances against the award including any in-between orders that might have been
passed by the Arbitral Tribunal acting under Section 16 of the Act. The party
aggrieved by any order of the Arbitral Tribunal, unless has a right of appeal under
Section 37 of the Act, has to wait until the award is passed by the Tribunal. This
 appears to be the scheme of the Act. The Arbitral Tribunal is, after all, a creature
of a contract between the parties, the arbitration agreement, even though, if the
occasion arises, the Chief Justice may constitute it based on the contract between
the parties. But that would not alter the status of the Arbitral Tribunal. It will still
be a forum chosen by the parties by agreement. We, therefore, disapprove of the
stand adopted by some of the High Courts that any order passed by the Arbitral
Tribunal is capable of being corrected by the High Court under Article 226 or 227
of the Constitution. Such an intervention by the High Courts is not
permissible.”
47.......
(vii) Once the matter reaches the Arbitral Tribunal or the sole Arbitrator, the High Court
would not interfere with the orders passed by the arbitrator or the Arbitral
Tribunal during the course of the arbitration proceedings and the parties could
approach the Court only in terms of Section 37of the Act or in terms of Section 34
of the Act.”
(ii) Paramjeet Singh Patheja v. ICDS Limited, 2006 (5) CTC 357, wherein in Para
Nos.43, 44 and 45, it was held thus:—
“43. As already noticed, ‘litigation’ has been held to mean ‘a legal action,
including all proceedings therein, initiated in a Court of law’. Obviously therefore
Parliament had in mind debts due to ‘litigants’ i.e., debts due by reason of decrees
of Courts. It is well settled that Courts, unlike Arbitrators or Arbitral Tribunals,
are the third great organ under the Constitution; legislative, executive and
judicial. Courts are institutions set up by the State in the exercise of the
judicial power of the State will be seen from the cases mentioned hereinbelow:—
“The expression ‘Court’ in the context (of Article 136) denotes a Tribunal
constituted by the State as a part of the ordinary hierachy of Courts which are
invested with the State’s inherent judicial powers. A sovereign State
discharges legislative, executive and judicial function and can legitimately claim
corresponding powers which are legislative, executive and judicial. Under our
Constitution, the judicial functions and powers of the State are primarily conferred
on the ordinary Courts which have been constituted under its relevant provisions.
The Constitution recognised a hierarchy of Court and to their adjudication are
normally entrusted all disputes between citizens as well as between citizens and the
State. These Courts can be described as ordinary Courts of civil judicature. They
are governed by their prescribed rules of procedure and they deal with questions of
fact and law raised before them by adopting a process which is described as
judicial process. The powers which these Courts are judicial powers, the
functions they discharge are judicial functions and the decisions they reach are
and pronounce are judicial decisions.”
“In every State there are administrative bodies. But the authority to reach
decisions conferred on such administrative bodies is clearly distinct and separate
from the judicial power conferred on Courts, and the decisions pronounced by
administrative bodies are similarly distinct and separate in character from judicial
decisions pronounced by Courts.”
“Tribunals occupy a special position of their own under the scheme of our
Constitution. Special matters are entrusted to them and in that sense they share
 with the Courts one common characteristic; both the Courts and the Tribunals are
constituted by the State and are invested with judicial as distinguished from purely
administrative or executive functions’.... The basis and fundamental feature which
is common to both the Courts and Tribunals is that they discharge judicial
functions and exercise judicial powers which inherently vest in a sovereign State.”
“By ‘Courts’ is meant Courts of civil judicature and by ‘Tribunals’ those bodies
of men who are appointed to decide controversies arising under certain special
laws. Among the power of the State is the power to decide such controversies.
This is undoubtedly one of the attributes of the State, and is aptly called the judicial
power of the State.”
“All Tribunals are not Courts, though all Courts are Tribunals. The word
‘Courts’ is used to designate those Tribunals which are set up in an organised
State for the administration of justice.”
“It is common knowledge that a ‘Court’ is an agency created by the sovereign for
the purpose of administering justice. It is a place where justice is judicially
administered. It is a legal entity”.
44. That litigation is therefore very different from arbitration is clear. The former
is a legal action in a Court of law where Judges are appointed by the State; the
latter is the resolution of a dispute between two contracting parties by persons
chosen by them to be arbitrators. These persons need not even necessarily be
qualified trained Judges or lawyers. This distinction is very old and was
picturesquely expressed by Edmund Davies, J. in these words:
“Many years ago, a top-hatted gentleman used to parade outside these law Courts
carrying a placade which bore a stirring injunction “Arbitrate don’t litigate.”
45. Moreover, the position that arbitrators are not Courts is quite obvious and this
Court noted the position as under in two decisions:
“But the fact that the arbitrator under Section 10-A is not exactly in the same
position as a private arbitrator does not mean he is a Tribunal under Article 136.
Even if some of the trappings of the Court are present in his case, he lacks the
basic, essential and fundamental requisite in that behalf because he is not
invested with the State’s judicial power.... he is not a Tribunal because the State
has not invested him with its inherent judicial power and the power of
adjudication which he exercises is derived by him from the agreement between
parties (Engineering Mazdoor Sabha & Anr. v. Hind Cycles Ltd., AIR 1963 SC
874).”
“There was no dispute that the Arbitrator appointed under Section 19 (1) (b) of the
Defence of India Act, 1939 was not a Court (Collector Varanasi v. Gauri Shankar
Misra & Ors., AIR 1968 SC 384).”
5. This Court carefully considered the argument of the counsel on both sides. The
Honourable Supreme Court in (Oil & Natural Gas Commission v. Collector of Central
Excise) 1995 Supp (4) SCC 541 (Order dated 11.10.1991) directed the Government of India
to set up a committee consisting of representatives from the Ministry of Industry, the Bureau
of Public Enterprises and the Ministry of Law, to monitor disputes between Ministry and
Ministry of the Government of India, Ministry and public sector undertakings of the
Government of India and public sector undertakings in between themselves, to ensure
that no litigation comes to Court or to a tribunal without the matter having been first
examined by the committee and its clearance for litigation and may include a
representative of the Ministry concerned in a specific case and one from the Ministry of
Finance in the committee and nominate senior officers so that the Committee would function
with status control and discipline. The Honourable Supreme Court further observed that it
shall be the obligation of every Court and every tribunal where such a dispute is raised
hereafter to demand a clearance from the Committee in case it has not been so pleaded and in
the absence of the clearance, the proceedings would not be proceeded with.The orders of
the Honourable Supreme Court dated 11.10.1991 was subsequently affirmed in the
decisions reported in Mahanagar Telephone Nigam Limited v. Chairman, Central Board
of Direct Taxes, (2004) 6 SCC 431 and ONG v. Collector, Central Excise, (2004) 6 SCC 437
and again recently in Punjab and Sind Bank v. Allahabad Bank, (decision dated 28.03.2006)
(2006) 4 SCC 780.
6. Pursuant to said Orders of the Honourable Supreme Court, Office Memorandum
dated 31.12.1991 was issued by the Government of India (Bharath Sarkar) Cabinet
Secretariat (Mantrimandal Sachivalaya) wherein in Para Nos. 3, 4 and 5, it was stated thus:
—
“3. Accordingly, it has been decided to constitute a committee consisting of:
1. Cabinet Secretary
2. Secretary, Department of Industrial Development
3. Secretary, Department of Public Enterprises
4. Secretary, Department of Legal Affairs
5. Finance Secretary
6. Secretary of the concerned Ministry/Department.
4. The instructions regarding settlement of disputes between one Government
Department and another and one Government Department and a public
enterprise and between public enterprise themselves as contained in this
Secretariat memo referred to in para 1 above need to be strictly followed in all
cases. If, however, no final decision can be arrived at following the said
instructions, the concerned Ministry/Department or the concerned public
sector undertaking through their administrative Ministry/Department should refer
such cases to the Cabinet Secretariat with a self-contained note for placing
before the above constituted committee for decision. Further, it has to be ensured
that no litigation involving such disputes is taken up in a Court or a Tribunal
without the matter having been first examined by the above constituted Committee
and the committee’s clearance for litigation is obtained.
5. The foregoing instructions may be brought to the notice of all concerned for
guidance and strict compliance.”
7. Arguments were advanced by the counsel for the petitioner that both the petitioner
and the first respondent are public sector undertakings and the Arbitral Tribunal is also a
Tribunal, hence, the present dispute cannot go on without first obtaining clearance of the said
committee of Secretaries.
8. In this case, the first respondent is a joint venture, consisting of Sri Bhavani
Builders, a partnership firm and M/s. Ircon International, a public sector undertaking having
stakes of 78% and 22% respectively. Hence, the contract between the petitioner and the first
respondent cannot be construed just between two public sector undertakings. The Arbitral
Tribunal in its findings mentioned that “In such a situation, it is not permissible for us to split
the dispute, suspend one part of it asking Ircon and the CPT to go before the committee of
Secretaries for clearance while the remainder of the dispute proceeds before us...” The said
finding of fact is exclusive domain of Arbitral Tribunal which cannot be interfered under
Article 226 of the Constitution of India. Considering the above facts, this Court is of the
respectful opinion that the clearance of the committee of Secretaries does not arise in the case
on hand.
9. The Arbitral Tribunal relied on Para-2 of the judgment of the Honourable Supreme
Court reported in 2004 (6) SCC 437 and also the portion of memo submitted by Union of
India and extracted the same, which is as follows:—
“It is in this context that the Cabinet Secretariat has issued instructions from time
to time to all departments of the Government of India as well as to public sector
undertakings of the Central Government to the effect that all disputes,
regardless of the type, should be resolved amicably by mutual consultation or
through the good offices of empowered agencies of the Government or through
arbitration and recourse to litigation should be eliminated.”
It is evident that resolution of disputes through arbitration is permitted along with other
modes of “mutual consultation” or “through the good offices of empowered agencies of
Government” but restricted recourse to litigation. As rightly pointed out by the Arbitral
Tribunal, the method of arbitration was equated with amicable settlement and settlement
through the good offices of empowered agencies of the Government. Hence, the adjudication
of disputes by way of arbitration cannot be treated as litigation. Litigation means, a legal
action, including proceedings initiated in Court of Law or Tribunal.
10. The other plea of the petitioner is that the Arbitral Tribunal is also a tribunal,
hence, the said plea is to be considered. The Arbitral Tribunal is not constituted by law, but
it is constituted by the parties and the power to decide the dispute between the parties, who
appointed it is derived by it from the agreement of the parties and from no other sources. The
Arbitral Tribunal is not a tribunal because the State has not vested it with its inherent judicial
power and the power of adjudication which it exercises is derived by it from the agreement of
the parties. Similarly, it cannot be called as a Court since its appointment, once made by the
parties, is recognised by the Arbitration and Conciliation Act and its appointment is clothed
with certain powers and has thus, no doubt, some of the trappings of a Court, does not mean
that the power of adjudication, which it is exercising is derived from the State and so. In this
context, it is useful to refer to the decision of the Honourable Supreme Court reported in
Engineering Mazdoor Sabha and another v. Hind Cycles Ltd., AIR 1963 SC 874 wherein in
Para 16 it was stated thus:—
“16. ....Even if some of the trappings of a Court are present in his case, he lacks the
basic, the essential and the fundamental requisite in that behalf because he is
not invested with the State’s inherent judicial power. As we will presently point
out, he is appointed by the parties and the power to decide the dispute between the
parties who appoint him is derived by him from the agreement of the parties and
from no other source. The fact that his appointment once made by the parties
is recognised by Section 10-A and after his appointment, he is clothed with
certain powers and thus, no doubt, some of the trappings of a Court, does not mean
that the power of adjudication which he is exercising is derived from the State and
so, the main test which this Court has evolved in determining the question about
the character of an adjudicating body is not satisfied. He is not a Tribunal because
the State has not invested him with its inherent judicial power and the power of
 adjudicating which he exercises is derived by him from the agreement of the
parties. His position, thus, may be said to be higher than that of a private arbitrator
and lower than that of a tribunal. A statutory tribunal is appointed under the
relevant provisions of a statute which also compulsorily refers to its
adjudication certain classified classes of disputes. This is the essential feature of
what is properly called statutory adjudication or arbitration. That is why we think
the argument strenuously urged before us by Mr. Pai that a writ of certiorari can
lie against his award is of no assistance to the appellants when they contended that
such an Arbitrator is a Tribunal under Article136.”
In Paramjeet Singh Patheja v. ICDS Limited, 2006 (5) CTC 357, the Honourable
Supreme Court in Para Nos. 43 and 44 held thus:—
“43. As already noticed, “litigation” has been held to mean “a legal action,
including all proceedings therein, initiated in a Court of law”. Obviously therefore
Parliament had in mind debts due to “litigants” i.e., debts due by reason of decrees
of Courts. It is well settled that Courts, unlike Arbitrators or Arbitral Tribunals,
are the third great organ under the Constitution; legislative, executive and judicial.
Courts are institutions set up by the State in the exercise of the judicial power of
the State will be seen from the cases mentioned herein below:—
“The expression ‘Court’ in the context (of Article 136) denotes a Tribunal
constituted by the State as a part of the ordinary hierarchy of Courts which are
invested with the State’s inherent judicial powers. A sovereign State
discharges legislative, executive and judicial function and can legitimately claim
corresponding powers which are legislative, executive and judicial. Under our
Constitution, the judicial functions and powers of the State are primarily conferred
on the ordinary Courts which have been constituted under its relevant
provisions. The Constitution recognised a hierachy of Court and to their
adjudication are normally entrusted all disputes between citizens as well as
between citizens and the State. These Courts can be described as ordinary
Courts of civil judicature. They are governed by their prescribed rules of
procedure and they deal with questions of fact and law raised before them by
adopting a process which is described as judicial process. The powers which these
Courts are judicial powers, the functions they discharge are judicial functions and
the decisions they reach are and pronounce are judicial decisions.”
“In every State there are administrative bodies.... But the authority to reach
decisions conferred on such administrative bodies is clearly distinct and separate
from the judicial power conferred on Courts, and the decisions pronounced by
administrative bodies are similarly distinct and separate in character from judicial
decisions pronounced by Courts.”
“Tribunals occupy a special position of their own under the scheme of our
Constitution. Special matters are entrusted to them and in that sense they share
with the Courts one common characteristic; both the Courts and the Tribunals are
constituted by the State and are invested with judicial as distinguished from purely
administrative or executive functions’.... The basis and fundamental feature which
is common to both the Courts and Tribunals is that they discharge judicial
functions and exercise judicial powers which inherently vest in a sovereign State.”
 “By ‘Courts’ is meant Courts of civil judicature and by ‘Tribunals’ those bodies
of men who are appointed to decide controversies arising under certain special
laws. Among the power of the State is the power to decide such controversies.
This is undoubtedly one of the attributes of the State, and is aptly called the judicial
power of the State.”
“All Tribunals are not Courts, though all Courts are Tribunals. The word
‘Courts’ is used to designate those Tribunals which are set up in an organised
state for the administration of justice.”
“It is common knowledge that a ‘Court’ is an agency created by the sovereign for
the purpose of administering justice. It is a place where justice is judicially
administered. It is a legal entity”.
“44. That litigation is, therefore, very different from arbitration is clear. The
former is a legal action in a Court of law where Judges are appointed by the State;
the latter is the resolution of a dispute between two contracting parties by
persons chosen by them to be arbitrators. These persons need not even necessarily
be qualified trained Judges or lawyers. This distinction is very old and was
picturesquely expressed by Edmund Davies, J in these words:
“Many years ago, a top-hatted gentleman used to parade outside these law Courts
carrying a placade which bore a stirring injunction “Arbitrate don’t litigate.”
11. Thus, basic and fundamental feature which is common to both the Courts and
Tribunals is that they discharge judicial functions and exercise judicial powers which
inherently vest in a sovereign State, hence, the plea of the petitioner that Arbitral Tribunal
is also a Tribunal is rejected.
12. As per the scheme of Arbitration and Conciliation Act, 1996, the arbitration matter
has to proceed without any hindrance or obstructions from the Courts, particularly so by
writ petition. In no uncertain terms it is clearly stipulated that for sections falling under Part I
no judicial authority shall interfere except where so specifically provided in that part. The
scheme evolved by Sections 12, 13 and 16 of the Act is of the clear view that spokes should
not be put in passing the arbitral award. The Arbitral Tribunal may rule on its own
jurisdiction, including ruling on any objection with respect to the existence or validity of the
arbitration agreement. Under Section 34, the aggrieved party has an avenue for
ventilating its grievances against the award, including any in-between orders that might have
been passed by the Arbitral Tribunal acting under Section 16 of the Act. The party
aggrieved by any order of the Arbitral Tribunal, unless has a right of appeal under Section
37 of the Act, has to wait until the award is passed by the Tribunal. The object of minimising
judicial intervention while the matter is in the process of being adjudicated upon, will
certainly be defeated if the High Court could be approached under Article 227 or under
Article 226 of the Constitution of India against every orders made by the Arbitral Tribunal.
Followed SBP & Co. v. Patel Engineering Limited and another, 2005 (8) SCC 618,
mentioned supra, hence, the writ petition is not maintainable.
13. The findings relating to plea of estoppel made by the Arbitral Tribunal is also
perfectly valid.
14. In view of the above said discussion, the writ petition is dismissed. No costs.
Petition dismissed.
 [2007 (2) TNCJ 436 (Mad) (MB)]
MADRAS HIGH COURT
(MADURAI-BENCH)
BEFORE:
S. RAJESWARAN, J.
SYED SARBUTHEEN ...Petitioner
Versus
SIVAKASI SHAFI MADAHAB PERIA
PALLIVASAL JAMATH, THROUGH ITS
PRESIDENT, MOHAMMED GANI ...Respondent
[C.R.P. (PD) (MD) No. 1101 of 2006 and M.P. No.1 of 2006, decided on 6 February, 2007]
th

(A) Civil Procedure Code, 1908—Order VI, Rule 17— Amendment of

pleading—Suit survey number wrongly included and measurements were also wrongly
given—Amendment neither changing character of suit nor introducing new cause of
action—Hence, amendment can be allowed.
The learned counsel for the petitioner submits that earlier at the time of filing the suit,
the suit survey numbers were wrongly included as T.S.Nos. 60, 61 and 62 in respect of the
first schedule property and the measurements were wrongly given in respect of the second
schedule property. For that purpose, the petitioner has filed an application in I.A.No.255 of
2005 to avoid technicalities coming in his way in granting the relief. Hence, he filed an
application to amend the plaint for making certain alterations in the plaint schedule Nos.1 and
2. According to the learned counsel for the petitioner this proposed amendment would not
change the character of the suit nor introduce a new cause of action.
The legal position as per law under Order VI, Rule 17 is not to adopt a
hyphertechnicality in allowing the amendments. Unless the amendment sought for would
alter the nature and character of the suit and bring in a new cause of action, the same is to be
allowed liberally. Moreover it would avoid multiplicity of the proceedings also. Further the
Court cannot go into the question of truth or falsity of the proposed amendment sought for at
that time of considering the application for amendment. All amendments are required for
determination of real controversy in the suit provided the proposed amendment does not alter
and substitute a new cause of action.
In this case, the proposed amendment sought for by the plaintiff would no way
alter the nature and character of the suit nor would bring a new cause of action. Moreover
the amendment could only help to resolve the dispute and minimize the litigation.
Therefore, I find that the contention of the learned counsel for the respondent is not well
founded and his apprehension that it is an attempt to protract the proceedings is without basis.
(Paras 5, 9 and 10)
(B) Civil Procedure Code, 1908—Order VI, Rule 17— Amendment of
pleading—Lack of due diligence—Plea raised by respondent that petitioner failed to
establish that in spite of due diligence he could not have raised matter before
commencement of trial—Held, proviso to Order VI, Rule 17 introduced by way of
amendment in 2002 and suit was of year 1997—Hence, proviso will not apply to present
case—Thus petitioner need not establish due diligence.
 The learned counsel for the respondent relied on the proviso to Order VI, Rule 17 to
contend that the revision petitioner failed to establish that in spite of due diligence he could
not have raised the matter before the commencement of the trial of the suit. But proviso to
Order VI, Rule 17 was introduced by Amendment Act, 2002 and the same came into force
with effect from 01.07.2002. Therefore, the proviso will not apply to the suits instituted
before 01.07.2002. In the case on hand, the suit was originally filed in the year 1997 as
O.S.No.17 of 1997 and thereafter renumbered as O.S.No.59 of 2004. Therefore, proviso to
Order VI, Rule 17 C.P.C. will not apply to the present case.
(Para 12)
Important Point
Amendment of pleading.—Amendment of pleading can be allowed if it would not
change character of the suit nor introduce a new cause of action.
Case law.—2006 (5) CTC 874; 2006 (4) CTC 239 relied on; 2000 (3) LW. 818—
distinguished.
Counsel.—Mr. N. Damodharan, for the petitioner; Mr. M. Jothi Bashu, for the
respondent.
JUDGMENT
S. RAJESWARAN, J.—This civil revision petition has been filed against the order dated
14.12.2005 made in I.A.No.255 of 2005 in O.S.No.59 of 2004 on the file of the Subordinate
Court, Srivilliputhur.
2. The plaintiff is the revision petitioner before this Court.
3. The suit was filed against the respondent/defendant for declaration and mandatory
injunction. The respondent/defendant filed a detailed written statement. The plaintiff has filed
an application in I.A.No.255 of 2005 under Order VI, Rule 17, C.P.C. for bringing an
amendment in the first and second schedule properties. The details of the amendment are
given in the application. The said application was resisted by the respondent/defendant by
filing a counter. The trial Judge by its order dated 14.12.2005 dismissed the said application.
Aggrieved against that order, this civil revision petition has been filed under Article 227 of
the Constitution of India.
4. Heard the learned counsel appearing for the petitioner as well as the learned counsel
appearing for the respondent. I have also gone through the documents and the judgments
referred to by them in support of their submissions.
5. The learned counsel for the petitioner submits that earlier at the time of filing the
suit, the suit survey numbers were wrongly included as T.S.Nos. 60, 61 and 62 in respect of
the first schedule property and the measurements were wrongly given in respect of the second
schedule property. For that purpose, the petitioner has filed an application in I.A.No.255 of
2005 to avoid technicalities coming in his way in granting the relief. Hence, he filed an
application to amend the plaint for making certain alterations in the plaint schedule Nos.1 and
2. According to the learned counsel for the petitioner this proposed amendment would not
change the character of the suit nor introduce a new cause of action. Therefore, he submitted
that the order passed by the Court below rejecting the application is legally untenable and
unsustainable. In support of his submission, the learned counsel for the petitioner relied on
the decision reported in 2006 (4) CTC 239 (Synam Beevi Ammal v. Seeni).
6. Per contra, the learned counsel for the respondent while refuting all the
submissions made by the learned counsel for the petitioner, submitted that this application
for amendment has been brought after the evidence was over. Moreover, a written statement
was filed in the year 1997 and the application for amendment of the plaint has been filed after
a prolonged period of six years. The learned counsel for the respondent thus vehemently
opposed this application contending that they have not only approached the trial Court
belatedly but also filed the civil revision petition belatedly. He relied on the decision reported
in 2000 (3) L.W.818 (Chinnapillai and two others v. Angappa Udayar and three others).
7. I have considered the rival submissions made by the learned counsel with regard to
the facts and citations. The question involved to be decided in the civil revision petition is:—
“Whether the dismissal of the amendment application is legally sustainable or
not?”
8. Order VI, Rule 17 is extracted below for better appreciation:—
Order VI, Rule 17.—”The Court may at any stage of the proceedings allow either
party to alter or amend his pleading in such manner and on such terms as may
be just, and all such amendments shall be made as may be necessary for the
purpose of determining the real questions in controversy between the parties:
Provided that no application for amendment shall be allowed after the trial has
commenced, unless the Court comes to the conclusion that in spite of due
diligence, the party could not have raised the matter before the commencement of
trial.”
9. The legal position as per law under Order VI, Rule 17 is not to adopt a
hyphertechnicality in allowing the amendments. Unless the amendment sought for would
alter the nature and character of the suit and bring in a new cause of action, the same is to be
allowed liberally. Moreover it would avoid multiplicity of the proceedings also. Further the
Court cannot go into the question of truth or falsity of the proposed amendment sought for at
that time of considering the application for amendment. All amendments are required for
determination of real controversy in the suit provided the proposed amendment does not alter
and substitute a new cause of action.
10. In this case, the proposed amendment sought for by the plaintiff would no way
alter the nature and character of the suit nor would bring a new cause of action. Moreover
the amendment could only help to resolve the dispute and minimize the litigation.
Therefore, I find that the contention of the learned counsel for the respondent is not well
founded and his apprehension that it is an attempt to protract the proceedings is without basis.
11. I, therefore, find that the submissions made by the learned counsel for the
respondent are liable to be rejected in view of the clear facts and circumstances.
12. The learned counsel for the respondent relied on the proviso to Order VI, Rule
17 to contend that the revision petitioner failed to establish that in spite of due diligence he
could not have raised the matter before the commencement of the trial of the suit. But
proviso to Order VI, Rule 17 was introduced by Amendment Act, 2002 and the same came
into force with effect from 01.07.2002. Therefore, the proviso will not apply to the suits
instituted before 01.07.2002. In the case on hand, the suit was originally filed in the year
1997 as O.S.No.17 of 1997 and thereafter renumbered as O.S.No.59 of 2004. Therefore,
proviso to Order VI, Rule 17, C.P.C. will not apply to the present case.
13. In 2006(5)CTC 874 (State Bank of Hyderabad v. Town Municipal Council) the
Supreme Court has categorically held that the proviso to Order VI, Rule 17 will not apply to
the suit instituted before 01.07.2002.
14. In 2006(4)CTC 239 (Synam Beevi Ammal v. Seeni) this Court held that
amendments sought for to amend the survey number of the suit schedule property would not
change the cause of action and the same are to be allowed. The decision relied on by the
counsel for respondent in 2000 (3) L.W.818 (cited supra) is not helpful to the respondent as
the facts are different and easily distinguishable.
15. In view of the above decisions, this civil revision petition is to be allowed on
condition that the revision petitioner pays a sum of Rs.1,000/- (Rupees one thousand only)
directly to the respondent within a period of two weeks from the date of receipt of a copy of
this order, failing which, the amendment petition filed in I.A.No.255 of 2005 shall stand
dismissed automatically without further reference to this Court.
16. Consequently the order dated 14.12.2005 made in I.A.No.255 of 2005 in
O.S.No.59 of 2004 is set aside and the civil revision petition is allowed.
17. Since it is represented that the suit is of the year 1997, I direct the trial Court to
permit the amendment to be carried out in the plaint and also to proceed with the trial on
merits within a period of four months from the date of receipt of a copy of this order
provided the revision petitioner complies with the condition imposed within the stipulated
time.
18. With the above direction, this civil revision petition is allowed. On carrying out
the amendment by the plaintiff the defendant is at liberty to file any objection by filing
any additional statement if necessary. Connected M.P.No.1 of 2006 is closed.
Revision allowed.

[2007 (2) TNCJ441(Mad)(MB)]

MADRAS HIGH COURT
(MADURAI-BENCH)
BEFORE:
K. VENKATARAMAN, J.
R. GOPALAKRISHNAN AND ANOTHER ...Petitioners
Versus
ULAGANAYAGI AND OTHERS ...Respondents
[C.R.P. (PD) (MD) No. 235 of 2004 and CMP (MD) No. 2168 of 2005, decided on 29 th
September, 2006]
Civil Procedure Code, 1908—Order XIV, Rule 2—Preliminary issues—Stage of
decision—Petitioners want to decide issues of non-joinder of parties, misjoinder of
parties, issue of limitation and other issues as preliminary issue—Held, under Order
XIV, Rule 2 two issues namely jurisdiction of Court or a bar to suit created by any law
for time being in force can be decided as preliminary issue—No force in petition—
Petition dismissed.
Under Order XIV, Rule 2, C.P.C., only two categories of issue can be decided as
preliminary issues, viz., (1) the jurisdiction of the Court, or (2) a bar to the suit created by any
law for the time being in force. Only in the event of deciding those two issues, the Court
may postpone settlement of other issues. In the case on hand, the petitioners want to
decide the issues of non-joinder of parties, misjoinder of parties, the issue of limitation
and other issue, namely, the petitioners 1 and 2 ceased to be the partners of the firm during
the relevant transactions. These issues can be decided only at the time of final disposal of the
suit where all issues put together has to be decided. Nowhere the petitioners want the trial
Court to decide the question of jurisdiction or bar of suit. Thus, Order XIV, Rule 2, C.P.C.
cannot be invoked by the petitioners. (Para 7)
Important Point
Preliminary issues under Order XIV, Rule 2.—Under Order XIV, Rule 2 two
categories of issue can be decided as preliminary issues viz., (1) the jurisdiction of Court, or
(2) a bar to the issue created by law for the time being in force.
Case law.—AIR 1986 Guj. 162; AIR 1984 Kant. 55; AIR 1963 Mad. 302; 1999 (II)
MLJ 110; 2001 (3) L.W. 618—not applicable
Counsel.—Mr. A. Shanmugam, for the petitioners; Mr. G. Sridhar, for the
respondents.
JUDGMENT
K. VENKATARAMAN, J.—This civil revision petition is directed against the order of
the learned II Additional District Munsif, Tirunelveli dated 26.8.2004 in I.A.No.228 of 2004
in O.S.No.252 of 2004.
2. The petitioners herein, who are the petitioners in I.A.No.228 of 2004 and defendants
1 and 2 in O.S.No.252 of 2004, has filed the said I.A. to raise and hear the following
preliminary issues:—
(1) Whether the suit is bad for non-joinder of firm Sri Thangam Finance and
all other partners, both existing and retired partners?
(2) Whether the suit is bad for misjoinder of defendants 1 and 2 consequent to
their retirement on 31.7.1997?
(3) Whether the suit is barred by limitation?
(4) Whether the defendants 1 and 2 ceased to be liable in consequence to the
transactions made by the plaintiff with existing partners of the firm?
3. The said application has been filed in the suit that has been laid by the respondents
herein for recovery of certain amounts from the petitioners and one Sannasi. The said
application has been resisted by the respondents by filing a detailed counter. The learned II
Additional District Munsif, Tirunelveli by his order dated 26.8.2004 dismissed the said
application and hence, questioning the correctness of the said order, the present civil revision
petition has been filed.
4. Mr.A.Shanmugam, learned counsel appearing for the petitioners, has
vehemently contended that the learned trial Judge, on misconception of law and on facts,
dismissed the said application. The learned counsel has further submitted that under Order
XIV, Rule 2, C.P.C., the learned trial Judge is bound to decide the preliminary issues and
failure to do so is erroneous.
5. Per contra, Mr.G.Sridhar, learned counsel appearing for the respondent, has
contended that preliminary issues sought to be decided at the first instance as mentioned in
the application cannot be decided independently and all the issues raised in the suit have to be
decided in toto and there cannot be any partial hearing of only few issues. Thus, according to
the learned counsel for the respondent, the preliminary issues, which the petitioners want the
trial Court to decide at the first instance, cannot be decided at the first instance without
deciding the other issues in toto.
6. In this connection, it is useful to refer to Order XIV, Rule 2, C.P.C. reads as under:
—
 “2. Court to pronounce judgment on all issues.—(1) Notwithstanding that a case
may be disposed of on preliminary issue, the Court shall, subject to the
provisions of sub-rule (2), pronounce judgment on all issues.
(2) Where issues both of law and of facts arise in the same suit, and the Court is of
opinion that the case or any part thereof may be disposed of on an issue of law
only, it may try that issue first if that issue relates to—
(a) the jurisdiction of the Court, or
(b) a bar to the suit created by any law for the time being in force,
and for that purpose may, if it thinks fit, postpone the settlement of the other
issues until after that issue has been determined, and may deal with the suit in
accordance with the decision on that issue.”
7. Under Order XIV, Rule 2, C.P.C., only two categories of issue can be decided as
preliminary issues, viz., (1) the jurisdiction of the Court, or (2) a bar to the suit created by any
law for the time being in force. Only in the event of deciding those two issues, the Court
may postpone settlement of other issues. In the case on hand, the petitioners want to
decide the issues of non-joinder of parties, misjoinder of parties, the issue of limitation
and other issue, namely, the petitioners 1 and 2 ceased to be the partners of the firm during
the relevant transactions. These issues can be decided only at the time of final disposal of the
suit where all issues put together has to be decided. Nowhere the petitioners want the trial
Court to decide the question of jurisdiction or bar of suit. Thus, Order XIV, Rule 2, C.P.C.
cannot be invoked by the petitioners.
8. The learned counsel for the petitioners has relied on the following decisions:—
(1) Nautamlai v. Shri Vivekanand Co-Op. Housing Society Ltd., AIR 1986
Guj. 162;
(2) H. Manjunatha v. Ullal Dayananda, AIR 1984 Kant. 55;
(3) Central United Bank v. Venkatarama, AIR 1963 Mad. 302;
(4) Savitri Devi v. District Judge, Gorakuhpur and others, 1999 (II) MLJ
110; and
(5) A. Manivannan v. Sivaraj and others, 2001 (3) LW 618.
The said decisions are not in any way helpful to the petitioner. In those decisions,
Order XIV, Rule 2, C.P.C. have not been discussed and the facts and circumstances of those
cases are entirely different from the facts and circumstances of the case on hand.
9. Thus, I am unable to reconcile myself with the argument advanced on the side of the
petitioners stating that the issues enumerated in the application have to be decided as
preliminary issues. Further, Order XIV, Rule 2, C.P.C. does not contemplate such issues to
be decided as preliminary issues. Further, the learned trial Judge dismissed the said
application also on the ground that it has been filed belatedly, which sounds reasonable.
10. Hence, I do not find any reason to interfere with the order of the learned II
Additional District Munsif, Tirunelveli dated 26.8.2004 in I.A.No.228 of 2004 in
O.S.No.252 of 2004. Therefore, the civil revision petition is dismissed. Consequently,
C.M.P.No.2168 of 2005 is closed. However, there is no order as to costs.
Revision dismissed.
 [2007 (2) TNCJ444 (Mad)]
MADRAS HIGH COURT
BEFORE:
N. PAUL VASANTHAKUMAR, J.
VALLIVALAM DESIKAR POLYTECHNIC EDUCATIONAL
SOCIETY, NAGAPATTINAM REP. BY ITS CHAIRMAN
GOVERNING COUNCIL, A. APPASAMY ...Petitioner
Versus
THE DISTRICT REGISTRAR (SOCIETY REGESTRATION)
NAGAPATTINAM AND ANOTHER ...Respondents
[W.P.Nos. 17374 of 2005, W.P.Nos. 15686, 17006 and 19877 of 2006; W.P.M.P. No.
18883 of 2005 in W.P.No. 17374 of 2005; W.P.M.P.No. 15448 of 2006 in W.P. No. 15686 of
2006 and M.P. No. 1 of 2006 in W.P. No. 19877 of 2006, decided on 29 th June, 2007]
(A) Constitution of India, 1950—Article 226—Writ petition—Locus standi to file
—Removal from the post of Chairman of the Governing Council—Civil suit pending
against—Order of removal not become final—If the suit is ultimately decreed, the
person will get every right to continue the society—Not a stranger to the litigation or to
the affairs of the society—Possesses locus standi to challenge the order passed by
District Registrar and also registering the new Trust including the consequential orders.
(Para 10)
(B) Practice and procedure—Illegality committed—Brought to the notice of the
Court—Court cannot be a silent spectator to allow the illegal orders to
continue, which will amount to perpetuating the illegality.
(Para 10)
(C) Practice and procedure—When a statute prescribes to do a particular thing
in a particular manner, the same shall not be done in any other manner than prescribed
under the law.
(Para 13)
(D) Tamil Nadu Societies Registration Act, 1975—Section 44 (4)—Nature of
mandatory procedure—Non-compliance of—Society bearing registration No. 49/1969
not validly dissolved in a manner known to law—Order unsustainable.
(Para 14)
(E) Tamil Nadu Societies Registration Act, 1975—Section 9—Registering the
newly formed Trust—Earlier society not dissolved in accordance with law—
Registration of new society continues to be in the register—Registration of new Trust
cannot be treated as valid registration.
(Para 15)
(F) Practice and procedure—Administration of an aided Polytechnic—Earlier
Chairman removed—Suit pending—Polytechnic being an aided polytechnic, it has to
conduct its day to day affairs without any hindrance—Arrangement of interim
administrator to be made till the matter is resolved. (Para 17)
Case law.—AIR 1964 SC 358; (1999) 3 SCC 422.
 Counsel.—Mr. V. Raghavachari, Mr. G.R.M. Palaniappan (W.P. 19877/2006), for the
petitioner in all the petitions; Mr. A. Arumugam, Additional Govt. Pleader, for the
respondents (in W.P. 17374/05, respondent 1 in W.P. 15686, 17006 and 19877/2006), Ms.
G. Thilakavathi, Mr. R. Gopinath (W.P. 15686/2006), for the respondent 2 ( in W.P. 15686,
17006 and 19877/2006).
JUDGMENT
N. PAUL VASANTHAKUMAR, J.—All the above writ petitions are filed by Vallivalam
Desikar Polytechnic Educational Society, Nagapattinam, represented by A.Appasamy,
Chairman, Governing Council. In W.P.No.17374 of 2005, petitioner seeks a direction to the
first respondent to consider the explanations dated 21.11.2002, 7.1.2003, 14.3.2004 and
10.3.2005, submitted by the petitioner in response to the proceedings of the first respondent
under Section 44(2) of the Tamil Nadu Societies Registration Act, before proceeding under
Section 44(4) of the Tamil Nadu Societies Registration Act. In W.P.No.15686 of 2006
petitioner seeks to quash the letter No.34106/H2/2005 dated 26.4.2006 and consequently
forbear the second respondent from in any manner dealing with the affairs and
administration of the Vallivalam Desikar Polytechnic College, Nagapattinam. In
W.P.No.17006 of 2006, a declaration is sought for to declare the registration of the second
respondent under the name ‘Vallivalam Desikar Polytechnic College Educational and
Cultural Trust, Nagapattinam’, by the first respondent, as illegal, void and violative of
Section 9 of the Tamil Nadu Societies Registration Act, 1975. In W.P.No.19877 of 2006,
petitioner seeks to quash the proceedings in Rc.6917/B3/05 dated 9.6.2006 and to direct
the first respondent to cancel the registration of the second respondent.
2. The brief facts necessary for disposal of these writ petitions are as follows:
(a) One Sri.K.M.Desikar created an Endowment Trust by name ‘Vallivalam Desikar
Educational Trust’ on 1.3.1958 with registration No.696/1959. The founder
donated 150 acres of wet land to the Trust and declared himself to be a Trustee,
who also retained the power to appoint other Trustees and declared that the
income from the Trust properties should be utilised for Polytechnic and other
charitable purposes. The Founder Trustee executed a Will on 24.6.1965 and
registered as document No.21 of 1965 and appointed his only daughter
A.Kanagammal, wife of A.Appasamy Pillai, to be the Trustee after his life time
with the power to appoint her own successor.
(b) The Trust deed does not provide a scheme for management of the institution
with regard to the constitution of the Governing Council, its powers and
functions through bye-laws, etc. The Grant-in-aid Code, Chapter-II, Rule 8
stipulates that sanction of grant to an institution shall be subject to satisfying the
condition that the institution shall be under the management of a Governing
Council, which shall not have more than 20 members and preferably 15
members including the member, who shall be an ex- officio member/secretary.
One of the member shall be appointed as a Treasurer with the concurrence of
the Director of Technical Education. Not more than 50% members shall be
nominated by the Trust, Society, individual or group, which founded the
institution. The remaining 50% shall be nominated as per Rule 9(1) of the
Grant-in-aid code.
(c) The said K.M.Desikar, for managing the affairs of the Vallivalam Desikar
Polytechnic, formed a Society under the Societies Registration Act, 1860, under
the name and style of ‘Vallivalam Desikar Polytechnic Educational Society,
 Nagapattinam’ registered on 11.8.1969 with registration No.49 of 1969. The
said Society was formed only to comply with the requirements stated in Chapter-
II, Rule 8 of the Grant-in-aid Code. The said Founder Chairman of the Trust by
his letter dated 16.6.1984 addressed to the Director of Technical Education,
intimated the reconstitution of the Governing Council, wherein the deponent of
this affidavit viz., A.Appasamy, his son-in-law was its Chairman and the same
was approved by the Director of Technical Education through his
proceedings dated 27.9.1984, which was subsequently approved periodically by
proceedings dated 19.8.1997, 24.7.2000 and the Chairman sought approval for
subsequent years, that is from the year 2003, by letter dated 24.7.2003.
(d) It is the case of the petitioner that his son named Manavazhagan was appointed
as member of the Governing Council as per the proceedings of the Director of
Technical Education dated 19.8.1997. Since the said Manavazhagan
acted against the interest of the institution, the Governing Council removed
him and consequently the removal was also approved by the
Additional Director, Technical Education (Polytechnic) through his proceedings
dated 27.11.2001. The said Manavazhagan being aggrieved, filed civil suit in
O.S.No.81 of 2002 before the District Munsif Court, Nagapattinam, to declare
that his removal from membership is null and void and for injunction. The said
suit was dismissed on 5.2.2004. The said Manavazhagan there after created a
sham and nominal document and floated a new body under the name and style
‘Vallivalam Desikar Polytechnic College Educational and Cultural Trust,
Nagapattinam’ and registered the same under the Tamil Nadu Societies
Registration Act, 1975.
(e) The daughter of the original founder viz., A.Kanagammal, wife of the said
Appasamy, nominated her son Manavazhagan as a Trustee of the Educational
Trust and she also removed the petitioner herein A.Appasamy from the
Chairmanship of the Governing Council of the Society on 11.9.2003. The
said removal is challenged by him by filing O.S.No.149 of 2003 before the
Principal Sub Judge, Nagapattinam, and the suit was transferred and numbered
as O.S.No.145 of 2004 and pending on the file of District Munsif Court,
Nagapattinam. According to the petitioner, due to the pendency of the said suit,
the alleged removal of the petitioner from the Chairmanship of the
Governing Council of the Society has not become final.
(f) It is further stated in the affidavit that the said Manavazhagan floated a new
society under the very same name and style and submitted application for
registration and at his instance the Government issued Gazette notification on
10.12.2003 under Section 44(2) of the Tamil Nadu Societies Registration Act,
1975, and called upon the Society to submit its explanation within three months
as to why the name of the Society bearing registration No.49/1969 shall not be
deleted from the register. In the said Gazette Notification, another six societies
were declared as defunct as per Section 44(4) of the Tamil Nadu Societies
Registration Act, 1975, stating that they have not responded to the notice under
Section 44(2).
(g) On 9.1.2004, the Registrar of the Society addressed a letter to the Society
based on the Gazette notification issued under Section 44(2) and called upon to
submit its explanation. The petitioner Society submitted reply/ explanation on
14.3.2004 to the Inspector General of Registration as well as to the District
 Registrar, Nagapattinam. In the said representation, petitioner pointed out that
even before the expiry of three months period, the new society was registered
and assigned registration No.7/2004 on 27.1.2004.
(h) It is the case of the petitioner that the newly formed Trust used the name of the
old society, except the addition of the word ‘cultural’ and adopted same bye-
laws, while registering it as a Trust. The suit filed by the petitioner, even
though was dismissed for default on 27.4.2004, he filed another suit in
O.S.No.410 of 2004 for the same relief impleading the said Manavazhagan as
third defendant. The daughter of the original founder Trustee viz.,
A.Kanagammal died on 4.10.2004 and thereafter on 18.1.2005 the said
Manavazhagan sought for approval of his Governing Council.
(i) Petitioner filed W.P.No.17374 of 2005 and prayed not to strike out the Society’s
name. On 29.6.2004, this Court ordered to maintain status quo. On 26.4.2006
the Director of Technical Education permitted the said Manavazhagan to
continue as Chairman of the Governing Council of the Society. The said order is
challenged in W.P.No.15686 of 2006. On 9.6.2006 the District Registrar passed
an order stating that pursuant to the notification issued on 10.12.2003, petitioner
Society shall deemed to be dissolved and therefore, the new Trust was registered
on 27.1.2004 and the same is valid. The said order of the District Registrar
dated 9.6.2004 is challenged in W.P.No.19877 of 2006 and the registration of
the new society is challenged in W.P.No.17006 of 2006 with a prayer to
declare the registration as illegal, void and violative of Section 9 of the Societies
Registration Act. The order of the Director of Technical Education dated
26.4.2006, which is challenged in W.P.No.15686 of 2006 is based on the
registration of the new Society on 27.1.2004 and therefore, the petitioner states
that if the registration of the new society is held illegal as it is contrary to
Section 9 of the Tamil Nadu Societies Registration Act, consequential order
passed by the Director of Technical Education dated 26.4.2006 is also bound to
be set aside.
3. The District Registrar, Nagapattinam, filed a counter affidavit in W.P.No.19877
of 2006 which was adopted for other writ petitions also by the learned Additional
Government Pleader at the time of arguments. In the said counter affidavit it is stated that for
the purpose of administration of the Polytechnic College, Kanagammal registered a new
society under the name and style ‘Vallivalam Desikar Polytechnic College Educational and
Cultural Trust’ on 27.1.2004 and the Gazette Notification dated 10.12.2003 was issued only
under Section 44(4) of the Societies Registration Act, 1975, and only after dissolution of the
original society, new Trust was registered after publication of the Gazette Notification and
therefore, the registration of the new society is valid. It is also stated in the counter
affidavit that if at all the erstwhile Chairman of the Governing Council viz., A.Appasamy was
having any grievance against the notification dated 10.12.2003, nothing prevented him from
approaching the authority by way of submitting a suitable explanation. On the basis of the
said averments the District Registrar justified the registration of the new Trust/Society under
Section 9 of the Tamil Nadu Societies Registration Act, 1975.
4. The Chairman-cum-President of the Governing Council of the new Society viz.,
A.Manavazhagan filed a counter affidavit in W.P.No.15686 of 2006 wherein it is stated that
the Chairman of the Governing Council of the erstwhile society viz., A.Appasamy was in the
administration of the Society from 1984 to 2003 and during September, 2003, on account
of his inefficient administration he was relieved by the said Kanagammal by letter dated
11.9.2003 and after relieving the said Appasamy, Kanagammal came to know that
proceeding under Section 44(4) of the Tamil Nadu Societies Registration Act, 1975, was
issued by the District Registrar for dissolution of the Society, which was administering the
Polytechnic college and thereafter the said Kanagammal proceeded to reconstitute the
Governing Council of the Society in terms of the bye-laws and made herself as Chairman and
nominated other members. The tenure of the Governing Council was fixed as two years from
8.3.2004. The said Governing body was constituted as per the regulations issued by the
AICTE in the year 1994. It is also stated in paragraph 11 of the counter affidavit that since
by the Gazette Notification dated 10.12.2003 the erstwhile society was dissolved,
Kanagammal sought for registration of new Trust in the name of ‘M/s.Vallivalam Desikar
Polytechnic College Educational and Charitable Trust, Nagapattinam’, which was registered
on 27.1.2004 with registration No.7/2004 and the Polytechnic is being administered by the
said Trust. It is also contended in the counter affidavit that since the said Appasamy was
already removed from the Chairmanship and the same being the subject matter of the Civil
suit, unless and until the same is set aside he has no right to challenge any proceeding
claiming himself as Chairman and after 11.9.2003, the said Appasamy is no longer associated
with the administration of the Polytechnic college.
5. The learned counsel appearing for the petitioner argued that the original Society
having not been dissolved by a valid notification by following Section 44(4) of the Tamil
Nadu Societies Registration Act, 1975, no new Society/Trust under the same/similar name
and style and in particular, with the same bye-laws, can be allowed to be registered and such
registration is non-est in law. The learned counsel also submitted that the said notification
dated 10.12.2003 was issued only under Section 44(2) insofar as the Society with
registration No.49/1969 is concerned and the objection having been submitted within three
months as per the said Gazette Notification, the same is bound to be considered and if it is
not found accepted, a further notification under Section 44(4) is bound to be issued and
thereafter only the Society’s name can be removed from the register and the said removal
shall be published in the Tamil Nadu Government Gazette and thereafter only the registered
society will be deemed to be dissolved. In this case, no such Gazette Notification striking off
the name of the registered society bearing registration No.49/1969 is made till date and
therefore the name of the Society is deemed to be in the register and therefore the registration
made by the District Registrar registering the new Trust in more or less similar name on
27.1.2004 giving registration No.7/2004 is contrary to Section 9 of the Tamil Nadu Societies
Registration Act, 1975. The learned counsel therefore submitted that the District
Registrar has violated the statute while registering the newly formed Trust under the Tamil
Nadu Societies Registration Act, 1975, and only due to the said registration given to the
new Trust, the Director of Technical Education has chosen to approve the Chairmanship of
the said Manavazhagan and once the registration is declared as invalid the order passed by
the Director of Technical Education and all consequential orders will become
inoperative.
6. The learned counsel for the Chairman of the newly formed Trust contended that the
petitioner in these writ petitions has no locus standi to file these writ petitions as he was
removed from the post of Chairman of the Society as early as in September, 2003. Even
though he has challenged his removal in the Civil suit, no order in his favour is passed in the
civil suit till date. The learned counsel further submitted that even assuming that the old
society is not dissolved by following Section 44(4) of the Societies Registration Act, by
mere restoration of the Society, the administration in the Polytechnic will not be
changed. The learned counsel also contended that the dispute in these writ petitions are only
to the transfer of educational agency and the same cannot be challenged before this Court
under Article 226 of Constitution of India.
7. The learned Additional Government Pleader on the basis of the counter affidavit
filed by the District Registrar submitted that the original society became defunct by virtue of
the Gazette Notification dated 10.12.2003 in terms of Section 44(4) of the Act and
thereafter only new Trust was registered on 27.1.2004 and therefore Section 9 of the Tamil
Nadu Societies Registration Act, 1975, is not violated. The consequential orders passed by
the respondents approving Manavazhagan as Chairman of the Trust is also valid in view of
the registration of the Trust as early as on 27.1.2004.
8. I have considered the rival submissions made by the learned counsel for the writ
petitioner as well as respective respondents in all these writ petitions and the learned
Additional Government Pleader.
9. The point in issue is whether the society bearing registration No.49/1969 was
dissolved in a manner known to law and whether the District Registrar is right in registering
the newly formed Trust under Section 9 of the Tamil Nadu Societies Registration Act, 1975,
on 27.1.2004 and whether the petitioner viz., A.Appasamy has got locus standi to maintain
these writ petitions challenging the registration of the new Trust on the ground that the
earlier Trust was dissolved and the approval granted by the Director of Technical Education.
10. The first question to be decided is, whether the writ petitions filed by
A.Appasamy is maintainable and whether he has got locus standi to file these writ petitions.
The said Appasamy is father of Manavazagan; husband of late Kanagammal; and son-
in-law of the original founder of the Trust late K.M.Desikar. The removal of the said
Appasamy by his wife Kanagammal before her death from the post of Chairman of the
Governing Council has not become final and admittedly civil suit questioning the removal is
pending on the file of the District Munsif Court, Nagapattinam. If the civil suit is ultimately
decreed, Appasamy will get every right to continue the society bearing registration
No.49/1969. Therefore, the said Appasamy cannot be treated as a stranger to the litigation or
to the affairs of the Society or the Polytechnic and he has got locus standi to challenge the
order passed by the District Registrar and also registering of the new Trust and also the
consequential orders passed by the Director of Technical Education, approving
Manavazhagan as Chairman of the Governing Council of the newly registered Trust. It is
needless to say that even assuming that the said Appasamy has no legal right to challenge the
same as of now, the illegality committed by the District Registrar having been brought to the
notice of this Court, this Court cannot be a silent spectator to allow the illegal orders to
continue, which will in effect amounts to perpetuating the illegality. Hence, on any account,
I am of the view that these writ petitions are maintainable and this Court is entitled to see
whether the Society bearing registration No.49/1969 was dissolved in a manner known to
law and whether the registration of the Trust bearing registration No.7/2004 is valid in the
eye of law.
11. Now let me consider as to whether the Society bearing registration No.49/1969
was dissolved in a manner known to law. The undisputed facts in these cases are that the
Society bearing registration No.49/1969 was continuously administering the
Polytechnic, as required under the Grant-in-Aid Code and AICTE Regulations, 1994. It is
admitted by all the parties to the proceedings viz., Appasamy, Manavazhagan and the District
Registrar, Nagapattinam, that the Gazette Notification issued is dated 10.12.2003. The only
controversy as could be seen from the arguments and averments in the affidavit and
counter affidavit is that whether the said Gazette Notification published on 10.12.2003 is to
be treated as dissolution of the Society bearing registration No.49/1969 or it is a notice issued
under Section 44(2) of the Tamil Nadu Societies Registration Act, 1975. The procedure for
removal of the defunct registered society is prescribed under Section 44 of the Act, which
reads as follows:
“44(2) If the Registrar either receives an answer from the registered society to the
effect that it is not carrying on business or in operation, or does not within such
period as may be prescribed after sending the letter receive any answer, he may
publish in the Tamil Nadu Government Gazette, and send to the registered society
by registered post, a notice that, at the expiration of such period as may be
prescribed from the date of such publication, the name of the registered society
mentioned therein will, unless cause is shown to the contrary, be struck off the
register and the registered society will be dissolved.”
12. From the perusal of the Gazette Notification dated 10.12.2003 it could be seen that
seven societies were dealt with and insofar as the societies bearing registration Nos.69/91,
73/91, 74/91, 75/91, 76/91 and 78/91, it is clearly stated that the notification issued was under
Section 44(4) of the Act 27/1975 and Section 44(2) Gazette Notification was issued on
15.3.2002 insofar as all those societies are concerned. Insofar as the Society bearing
registration No.49/69 with which we are concerned now, the Gazette Notification was issued
only under Section 44(2). In the said notification it is further stated that from the date of
publication of the Gazette Notification, unless sufficient explanation is received from the
society within three months, the name of the society will be removed from the registered
societies. Hence, it is beyond doubt that insofar as Vallivalam Desigar Polytechnic
Educational Society, Nagapattinam, is concerned Gazette Notification is issued only under
Section 44(2) of the Act and no notification as contemplated under Section 44(4) of the Act
is issued. Section 44(4) of the Act reads as follows:
“44(4) At the expiration of the time mentioned in the notice referred to in sub-
section (2), or sub-section (3), the Registrar may, unless cause to the contrary
is previously shown by the registered society, strike its name off the register and
shall publish notice thereof in the Tamil Nadu Government Gazette, and, on the
publication of such notice, the registered society shall be deemed to be
dissolved:
Provided that the liability, if any, of every officer and member of the registered
society shall continue and may be enforced as if the registered society had not been
dissolved.”
13. It is well-settled in law that when a statute prescribes to do a particular thing in a
particular manner, the same shall not be done in any other manner than prescribed under the
law. The said proposition is well recognised as held by the Honourable Supreme Court in the
decision reported in AIR 1964 SC 358 (State of Uttar Pradesh v. Singhara Singh). In
paragraphs 7 and 8 of the Judgment, it is held thus:
“7. In Nazir Ahmed’s case, 63 Ind App 372: AIR 1936 PC 253 (2), the Judicial
Committee observed that the principle applied in Taylor v. Taylor, (1876) 1 Ch.D
426, to a Court, namely, that where a power is given to do a certain thing in a
certain way, the thing must be done in that way or not at all and that other methods
of performance are necessarily forbidden, applied to judicial officers making a
record under Section 164 and, therefore, held that the Magistrate could not give
oral evidence of the confession made to him which he had purported to record
under Section 164 of the Code. It was said that otherwise all the precautions and
 safeguards laid down in Sections 164 and 364, both of which had to be read
together, would become of such trifling value as to be almost idle and that ‘it
would be an unnatural construction to hold that any other procedure was permitted
than that which is laid down with such minute particularity in the sections
themselves.’
8. The rule adopted in Taylor v. Taylor, (1876) 1 Ch D 426, is well recognised and
is founded on sound principle. Its result is that if a statute has conferred a power
to do an act and has laid down the method in which that power has to be exercised,
it necessarily prohibits the doing of the act in any other manner than that which has
been prescribed. The principle behind the rule is that if this were not so, the
statutory provision might as well not have been enacted. A Magistrate, therefore,
cannot in the course of investigation record a confession except in the manner laid
down in Section 164. The power to record the confession had obviously
been given so that the confession might be proved by the record of it made in the
manner laid down. If proof of the confession by other means was permissible, the
whole provision of Section 164 including the safeguards contained in it for the
protection of accused persons would be rendered nugatory. The section, therefore,
by conferring on Magistrates the power to record statements or confessions, by
necessary implication, prohibited a Magistrate from giving oral evidence of the
statements or confessions made to him.”
The said proposition is also reiterated in the decision reported in (1999) 3 SCC
422 (Babu Verghese v. Bar Council of Kerala). In paragraphs 31 and 32 of the
Judgment, the Honourable Supreme Court held thus:
“31. It is the basic principle of law long settled that if the manner of doing a
particular act is prescribed under any statute, the act must be done in that manner
or not at all. The origin of this rule is traceable to the decision in Taylor v. Taylor,
(1876)1 Ch D 426, which was followed by Lord Roche in Nazir Ahmad v. King
Emperor, AIR 1936 PC 253, who stated as under:
‘Where a power is given to do a certain thing in a certain way, the thing must be
done in that way or not at all.’
32. This rule has since been approved by this Court in Rao Shiv Bahadur Singh v.
State of V.P., AIR 1954 SC 322 and again in Deep Chand v. State of Rajasthan,
AIR 1961 SC 1527. These cases were considered by a three-Judge Bench of this
Court in State of U.P. v. Singhara Singh, AIR 1964 SC 358, and the rule laid down
in Nazir Ahmed case (AIR 1936 PC 253) was again upheld. This rule has since
been applied to the exercise of jurisdiction by Courts and has also been recognised
as a salutary principle of administrative law.”
14. Coming to the case on hand, it could be seen from the counter affidavit of the
District Registrar, Nagapattinam, that the notification issued on 10.12.2003 is said to have
been issued under Section 44(4) of the Act. The said stand of the District Registrar,
Nagapattinam, is contrary to the Gazette notification issued on 10.12.2003. As already
stated, Gazette notification under Section 44(4) was issued in respect of other societies and
not in respect of the society bearing registration No.49/1969. Hence, it is beyond doubt that
the mandatory procedures contemplated under Section 44(4) is not complied with by the
District Registrar and consequently the stand taken by the respondents in these writ petitions
that the Society bearing registration No.49/1969 got dissolved on 10.12.2003 is
unsustainable. In the light of the above findings, this issue is answered against the
respondents.
15. The next question to be considered is, whether the District Registrar is right in
registering the newly formed Trust under Section 9 of the Act on 27.1.2004 in the absence
of valid dissolution of the earlier society bearing registration No.49/1969. While answering
the first issue, I came to the conclusion that the Society bearing registration No.49/1969 is
not validly dissolved by following the statutory procedure prescribed under Section 44(4)
of the Act. Since the earlier Society is not dissolved and the name of the said Society
continues to be in the register of the District Registrar, the registration of the new Trust on
27.1.2004 cannot be treated as valid registration in view of the statutory bar under
Section 9 of the Tamil Nadu Societies Registration Act, 1975, which reads as follows:
“9. Name of Society.—(1) No society shall be registered by a name which, in the
opinion of the Registrar, is undesirable.
Explanation.—For the purposes of this sub-section, the name of a society shall be
deemed to be undesirable, if such name is—
(a) obscene or against decency and decorum; or
(b) Likely to promote disharmony or feelings of enmity, or hatred or ill-will
between different religious, recital, language, or regional groups or castes or
communities; or
(c) identical with, or so nearly resembles, the name by which a society in existence
has been previously registered.”
It is not in dispute that the new Trust adopts the very same bye-laws of the existing
society bearing registration No.49/1969 and the name of the new Trust is also identical and
nearly resembles the name of the existing society. The said fact is admitted by the contesting
respondents and only justification made by the contesting respondents is that the earlier
society having been dissolved by the Gazette notification dated 10.12.2003, there is no
impediment to register the new Trust on 27.1.2004 though the name of the Trust is
somewhat identical and nearly resembles the name of the previously registered society. In
view of the said statutory bar contained in Section 9(1)(c) of the Act, registration of the new
society by the District Registrar is held illegal.
16. The next question to be decided is whether the approval of Manavazhagan, who is
Chairman of the Trust approved by the Director of Technical Education, can be treated as
valid approval in the light of the illegality in registering the Trust by the District Registrar,
without dissolving the earlier society in a manner known to law.
17. It is not in dispute that for administering an aided Polytechnic, there must be a
registered society, which have a Governing Council. Once registration of the Trust is
found illegal, the approval given by the Director of Technical Education based on the said
registration also cannot be treated as valid. However, admittedly the earlier Chairman of
the society viz., A.Appasamy was removed from the Chairmanship on 11.9.2003 and he filed
civil suit in O.S.No.149 of 2003 before the Principal Sub-Court, Nagapattinam, which was
transferred and renumbered as O.S.No.145 of 2004 and pending on the file of District Munsif
Court, Nagapattinam. Therefore, the said A.Appasamy cannot continue as Chairman of
the Governing Council after removal unless and until the said removal is set aside or declared
invalid in the civil suit filed by him. As already stated the Polytechnic being an aided
polytechnic, it has to conduct its day to day affairs without any hindrance. Hence, the said
Manavazhagan is permitted to function as interim Administrator till the matter is resolved by
the District Registrar in registering the Trust or till the disposal of the suit, whichever is
earlier.
18. In view of the above findings, following are my conclusions:
(a) The stand of the District Registrar and Manavazhagan that ‘Vallivalam Desigar
Polytechnic Educational Society, Nagapattinam’ bearing registration
No.49/1969 is dissolved by Gazette Notification dated 10.12.2003 is not
sustainable, as no Gazette Notification as prescribed under Section 44(4) of
the Tamil Nadu Societies Registration Act, 1975, was issued.
(b) The registration of the ‘Vallivalam Desikar Polytechnic College Educational and
Cultural Trust, Nagapattinam’ under registration No.7/2004 is in violation of
Section 9 of the Tamil Nadu Societies Registration Act, 1975, in view of non-
dissolution of the earlier society bearing registration No.49/1969, which has
identical name or the name nearly resembles.
(c) The order passed by the Director of Technical Education, approving the
Chairmanship of Manavazhagan to the Governing Council of ‘Vallivalam
Desikar Polytechnic College Educational and Cultural Trust, Nagapattinam’ on
the basis of registration on 27.1.2004 by the District Registrar is unsustainable.
(d) Since the issue involved is administration of an aided Polytechnic, for the day-
to-day administration, the said Manavazhagan is permitted to administer the
Polytechnic subject to the result of the suit filed by Appasamy, pending as
O.S.No.145 of 2004 on the file of District Munsif Court, Nagapattinam or till the
registration of the new Trust according to law, whichever is earlier.
(e) It is further made clear that the order passed in these writ petitions will not
preclude the District Registrar from taking appropriate further proceeding
against the Society bearing registration No.49/1969 based on the Gazette
Notification dated 10.12.2003 and while taking further action the representations
submitted by the said A.Appasamy till 11.9.2003 shall be considered as he was
the Chairman of the Governing Council till the said date.
(f) It is open to the District Registrar to consider registration of ‘Vallivalam Desikar
Polytechnic College Educational and Cultural Trust, Nagapattinam’ in
accordance with law and on such registration, it is open to the Director of
Technical Education to pass further orders on merits approving the Governing
Council.
19. In the result, W.P.Nos.17006 and 19877 of 2006 are allowed and W.P.Nos.17374
of 2005 and 15686 of 2006 are partly allowed in the above terms. No costs.

[2007 (2) TNCJ 459 (Mad)]

MADRAS HIGH COURT
BEFORE:
K. VENKATARAMAN, J.
REGIONAL DIRECTOR (TAMIL NADU)
EMPLOYEES STATE INSURANCE
CORPORATION MADRAS ...Appellant
Versus
M/S. MERCURY TRAVELS LTD. REP.
BY ITS REGIONAL MANAGER, MADRAS ...Respondent
[C.M.A. No. 1010 of 2001, decided on 3rd February, 2007]
(A) Employees State Insurance Act, 1948—Sections 75 and 45-A—Appeal—
Against order setting aside the order passed under Section 45-A directing to contribute
a sum of Rs. 8,766/- as has not been paid to contribution as per the provisions of law in
respect of coffee allowance and security charges—Wages means all remunerations paid
or payable in cash to an employee in pursuance of the terms of contract of employment
express or implied—Supply of tea or coffee to the staff with a ceiling limit of Rs. 35/-
and the payment of Rs. 15/ to peons as washing allowance are ex-gratia payments—And
are not a term of contract of employment express or implied—Appellants nowhere
stated that the said amounts have been paid by the respondent in pursuance of contract
of employment—Not part of wages—Not permissible to take a different view—Security
charges—Security service has been provided for safe guarding the property which has
been purchased elsewhere—Security personnel engaged through Security Services
cannot be treated as employees of the respondent—Do not fall under definition of an
employee under Section 2 (9) of the Act—Payments made for security arrangements to
the agency cannot be treated as wages to attract the levy of contribution under the
E.S.I. Act—Court below committed no error in passing impugned order—No
interference warranted—Appeal dismissed.
(Paras 5 to 9)
(B) Words and Phrases—Expression “Employee”—Explained.
(Para 6)
Case law.—2005 L.L.R 905; 2001 (1) L.L.J. 37.
Counsel.—Mr. V.K. Vijayaraghavan, for the appellant; Mr. T. Ravi Kumar, for the
respondent.
JUDGMENT
K. VENKATARAMAN, J.—The respondent in E.S.I.O.P. No.18/1991 before the I
Additional Judge, City Civil Court, Chennai is the appellant before this Court.
2. The respondent has filed the said Original Petition under Section 75 of the E.S.I. Act
praying for setting aside the order dated 30.3.1990/4.4.1990 passed by the Regional Director
in his order under Section 45-A of the E.S.I. Act, 1948. The appellant herein has passed an
order under Section 45-A of the said Act, directing the respondent herein to contribute a sum
of Rs.8,766/- stating that the respondent herein has not paid the contribution as per the
provisions of law in respect of the coffee allowance and security charges. Challenging the
said order, the respondent herein has filed ESIOP.No.18/1991 before the I Additional Judge,
City Civil Court, Chennai. The said Original Petition has been resisted by the appellant
herein by filing a written statement. The learned Judge of the E.S.I. Court has allowed the
said Original Petition and hence, an appeal has been preferred by the Regional Director
(Tamil Nadu), Employees State Insurance Corporation, Chennai.
3. I have heard the learned counsel appearing for the appellant as well as the
respondent.
4. The learned counsel appearing for the appellant strenuously contended that the Staff
Welfare and coffee allowance and the security charges fall within the definition of Section
2 (22) of the Act and that they have been properly assessed for computing the
contribution. Per contra, the learned counsel appearing for the respondent contended that
no contract between the employer and employee in respect of the payment of coffee
allowance. Further, the learned counsel for the respondent contended that security people
were engaged for safe-guarding the property and no business transaction was done in the
premises. Thus, according to the learned counsel appearing for the respondent, Section 2(22)
of the said Act will not attract.
5. Regarding the coffee allowance, it has been clearly stated by the respondent that
instead of paying directly to the vendor, the employer is paying to the staff with a ceiling
limit of Rs.35/- per month per staff. On the side of the employer, a note book containing the
initials of the staff taking coffee and tea from the vendor has been produced before the
authority, when notice under Section 45-A of the Act was served on it. Thus, it could be seen
that the coffee allowance, without paying directly to the vendor, is being paid to the
employee, whoever takes coffee and also the note book, containing the initials of the staffs
who are taking coffee, has been produced before the authority. Further, a sum of Rs.15/- is
being paid by the employer to the peons for washing. It is stated on the side of the
respondent that clothes are being supplied to the peons, for washing the liveries they are
paying the said allowance. In this connection, it will be useful to refer Section 2 (22) of the
said Act.
Section 2 (22) reads as follows:
“wages” means all remuneration paid or payable, in cash to an employee, if the
terms of the contract of employment, express or implied, were fulfilled and
includes (any payment to an employee in respect of any period of authorised
leave, lock-out, strike which is not illegal or lay-off and) other additional
remuneration, if any, (paid at intervals not exceeding two months), but does not
include.”
The above definition makes it very clear that wages means all remunerations paid or
payable in cash to an employee in pursuance to the terms of contract of employment express
or implied. Admittedly, the respondent even in the claim application under Section
75 of the Act clearly stated that the supply of tea or coffee to the staff with a ceiling limit of
Rs.35/- and the payment of Rs.15/- to peons as washing allowance are ex-gratia payments
and are not a term of contract of employment, express or implied. Though a written
statement has been filed at the instance of the appellant, nowhere it has been stated that the
said amounts have been paid by the respondent herein in pursuance of the contract of
employment whether express or implied. Unless and otherwise, it is shown that those
payments are made or paid in pursuance to the contract of employment whether express or
implied, then it cannot be termed as wages as defined under Section 2(22) of the said Act.
The ESI Court has considered that aspect of the matter and clearly stated that no contract is
produced by the appellant Corporation with regard to the payment of the above amounts as
wages and has decided the issue in favour of the respondent herein. I am unable to take a
different view in this regard.
6. As regard the claim in respect of the security charges, it is the plea of the respondent
herein that they have engaged M/s.Nasey and Ace Security Services for safeguarding the
property and no business transaction was done in the premises. Thus, it is the case of the
respondent herein that the security charges are paid for safe-guarding the property
elsewhere and not in the place of business. Section 2 (9) of the Act clearly reads as
follows:
 “9. “employee” means any person employed for wages in or in connection with the
work of a factory or establishment to which this Act applies and—
(i) who is directly employed by the principal employer on any work of, or incidental
or preliminary to or connected with the work of, the factory or establishment,
whether such work is done by the employee in the factory or establishment or
elsewhere; or
(ii) who is employed by or through an immediate employer, on the premises of the
factory or establishment or under the supervision of the principal employer or his
agent on work which is ordinarily part of the work of the factory or
establishment or which is preliminary to the work carried on in or incidental
to the purpose of the factory or establishment; or
(iii) whose services are temporarily lent or let on hire to the principal employer by the
person with whom the person whose services are so lent or let on hire has entered
into a contract of service.”
The above definition of “employee” clearly says that any person employed for
wages in or in connection with the work of the factory or establishment in which the Act
applies, alone can be considered as “employees”.
7. As stated already, the security service has been provided for safe-guarding the
property which has been purchased elsewhere and they have not been employed in the
business premises. The security personnel engaged through M/s.Nasey and Ace Security
Services cannot be treated as employees of the respondent and they do not fall under the
definition of an employee as set out in Section 2 (9) of the said Act. Hence, the payments
made for security arrangements to the agency cannot therefore be treated as wages, to attract
the levy of contribution under the E.S.I. Act.
8. The learned counsel appearing for the appellant has cited a decision reported in
2005 LLR p. 905 (Employees’ State Insurance Corporation v. Gnanambigail Mills Limited).
The Hon’ble Apex Court while dealing with Section 2(22) of the said Act has said that any
remuneration paid or payable in cash to the employee in terms of the contract of the
employment shall be considered as wages. But, in the case on hand as already discussed
above, the amount towards coffee charges and washing allowance are not in terms of contract
and hence, the said judgment will not be applicable to the case on hand. The other judgment
that has been cited by the learned counsel for the appellant is reported in 2001 I LLJ page 37
(Ratna Cafe v. E.S.I. Corporation). There the consideration was the food allowance and
service charges paid to the employees. Since it was a term of contract of employment for
providing food allowance, service charges etc, it was considered as wages as per Section 2
(22) of the said Act. But, in the case on hand, it has been clearly stated by the respondent
that the said payments are only ex-gratia payments and not a term of contract of employment
express or implied. Hence, the decision will not be of any use to the appellant.
9. The learned I Additional Judge, City Civil Court, Chennai has considered all the
aspects of the matter and has allowed the application filed by the respondent under Section
75 of the said Act. I do not see any error in the said order. Hence, the order of the learned I
Additional Judge, City Civil Court, Chennai made in E.S.No.18/1991 dated 31.03.2000 is
liable to be confirmed and accordingly confirmed. C.M.A. Stands dismissed. There is no
order as to costs.
Appeal dismissed.
 [2007 (2) TNCJ 463 (Mad)]
MADRAS HIGH COURT
BEFORE:
M. JAICHANDREN, J.
BRAMMAGIRI ....Appellant
Versus
MINOR SIVASUBRAMANIAM AND ANOTHER ....Respondents
[Second Appeal No. 1030 of 1996, decided on 20 June, 2007]
th

Civil Procedure Code, 1908—Section 100—Second appeal—Against decree

confirming 1/6th share of the plaintiff granted by trial Court in respect of the second
items of the suit scheduled property—Legality of—Second item of the suit schedule
property was a joint family property—Concurrent finding of two Courts below—
Release deed executed without including the plaintiff who was a minor as a party—No
permission of Court was obtained—Not mentioned in the release deed that it was
executed as a manager or karta of the joint family properties, for the benefit of the
family or due to necessity or to repay the family loans—Not binding on the plaintiff—
Suit instituted by the plaintiff is maintainable in law—Appreciation of oral as well as
documentary evidence—Finding of two Courts below based thereon—No interference
warranted.
(Paras 12 to 20)
Case law.—2007 (1) C.T.C. 334.
Counsel.—Mr. V. Nicholas, for the appellant; Mr. K. Rajeshwaran, for the
respondents.
JUDGMENT
M. JAICHANDREN, J.—This second appeal has been filed against the judgment and
decree passed by the Court of the Principal District Judge, Coimbatore, dated 09.03.1994,
made in A.S.No.214 of 1993, confirming the judgment and decree passed by the Court of the
Subordinate Judge, Tiruppur, dated 08.01.1993, made in O.S.No.295 of 1989.
2. The first defendant before the trial Court is the appellant in the present second
appeal. The plaintiff had filed the suit in O.S.No.295 of 1989, on the file of the Court of the
Subordinate Judge, Tiruppur, praying for the passing of a preliminary decree for partition
of the suit schedule properties, by dividing the same into four equal shares and to allot one
such share to the plaintiff and to put him in separate possession of the same and for the cost
of the suit.
3. The brief facts of the case, as stated by the plaintiff in the suit, are as follows:
The plaintiff is the minor son of the second defendant. The defendants are brothers.
The properties described in the suit schedule are ancestral properties belonging to the
joint family. The plaintiff is entitled to ¼th share in the suit schedule properties. The second
defendant had married the plaintiff’s mother and they had two daughters, both of whom are
elder to the plaintiff. The second defendant had deserted the plaintiff, his mother and sisters.
Therefore, they were living at Naduppalayam with the plaintiff’s maternal grandfather. It had
been further stated that the second defendant had executed two release deeds in favour of the
first defendant, acting against the interest of the plaintiff. The release deeds are not for the
benefit of the plaintiff, as he has not been made a nominee to the release deeds. The
consideration mentioned in the documents are also not true, or correct. The second defendant
is not entitled to release the properties, including the plaintiff’s share. Since the release deeds,
dated 12.12.1988 and 14.12.1988, are not genuine documents, they will not in any way bind
the plaintiff and curtail his rights over the suit schedule properties. Even though the first item
of the suit schedule property was purchased in the name of the plaintiff’s paternal grand-
mother, since it was purchased from and out of the income from the ancestral joint family
properties, the plaintiff is entitled to ¼th share in both the items of the suit schedule
properties. A legal notice had been issued on behalf of the plaintiff and the first defendant
had issued a reply stating that the plaintiff is living along with the second defendant and the
release deeds were made only for the benefit of the family. The statements made in the reply
notice are false and devoid of merits. Hence the plaintiff had filed the suit for partition and
separate possession of his ¼th share.
4. The brief averments in the written statement filed by the first respondent are as
follows:
The first respondent does not admit any of the allegations contained in the plaint,
except those which were specifically admitted. The statements made by the plaintiff are
deliberate, falsehood, mischievous and misleading. The claim of the plaintiff that the first
item of the suit schedule property was purchased in the name of the plaintiff’s paternal
grandmother, from and out of the income of the ancestral joint family properties is false. It
had also been stated that the plaintiff, his mother, the second defendant and the plaintiff’s
sisters are all living together happily and peacefully at Thalingikkadu Thottam, Pappampatti
Village, Palladam Taluk. They are not residing at Naduppalayam with the maternal grand-
father as stated in the plaint. There was no misunderstanding amongst them and it is not true
to state that the second defendant had deserted the plaintiff, his mother and the sisters. It is
only for the purpose of filing the present suit, the plaintiff had made such allegations with
ulterior motives. The first item of the suit schedule property has not been purchased from and
out of the income of the joint family ancestral properties and it has been purchased only
out of the hard earned money of the defendants mother. Only after receiving a huge amount
of money, as consideration, the second defendant had executed two separate registered
release deeds in favour of the first defendant, dated 12.12.1988 and 14.12.1988, as document
Nos.2715 and 2865 of 1988, respectively. The entire consideration had been utilised and
spent only for the welfare and advantage of the entire family. By virtue of the release deeds,
the first defendant had become the absolute and exclusive owner of the entire suit
schedule properties. When the second defendant had no right, title or interest over the
properties, the plaintiff who claims right through the second defendant, cannot have any
claim or right over the suit schedule properties. Since the plaintiff is not having any right,
title, or interest in the suit schedule properties, there is no need to implead him as a party,
or nominee in the release deeds. Therefore, the plaintiff is not entitled to any share in the suit
schedule properties. It had been further stated that a bare suit for partition, without
seeking the relief of cancellation, or setting aside of the release deeds, is not maintainable
and it is liable to be dismissed in limine. The plaintiff cannot maintain the suit as a co-owner,
or a co-sharer of the suit schedule properties. Further, there is no cause of action for the
suit and, therefore, the suit filed by the plaintiff is not maintainable.
5. Based on the rival claims made by the plaintiff, as well as the defendants, the trial
Court had framed the following issues for consideration:
(i) Whether the first item of the plaint schedule properties is a joint family property?
(ii) Whether the release deeds by the second defendant is binding on the plaintiff?
 (iii) Whether the plaintiff is entitled to partition? If so, what share he is entitled to?
(iv) What other reliefs the plaintiff is entitled to?
6. Based on the statements contained in Ex.A-1, the trial Court had come to the
conclusion that the first item of the suit schedule property belonged exclusively, to
Deivanaiammal, the mother of the defendants and therefore, the trial Court had come to the
conclusion that the plaintiff is not entitled to any share in the first item of the suit schedule
properties. It was also held that the release deed, dated 12.12.1988, marked as Ex.A-1,
executed by the second defendant and his sisters in favour of the first defendant is valid in
law. The trial Court had found that the second item of the plaint schedule property was an
ancestral property belonging to the defendants and their father. Therefore, the plaintiff was
entitled to only 1/6th share in the said property. In such circumstances, the plaintiff is entitled
to partition and separate possession of 1/6th share of the second item of the suit schedule
property.
7. Aggrieved by the judgment and decree of the trial Court, dated 08.01.1993, made in
O.S.No.295 of 1989, the first defendant had filed an appeal before the Principal District
Judge, Coimbatore. Based on the averments made on behalf of the plaintiff, as well as the
defendants and also based on the records available, the lower Appellate Court had framed the
following points for consideration:
“1. Whether the second item of the suit schedule property is a joint family
property?
2. Whether the plaintiff is entitled to the relief of partition with regard to the
second item of the suit schedule property?”
While answering the points for consideration, the lower appellate Court had
confirmed the findings of the trial Court and dismissed the appeal.
8. The present second appeal has been filed by the first defendant, who was the
appellant before the lower Appellate Court. The second appeal has been filed on various
grounds stated in the memorandum of the grounds of appeal. It has been stated inter alia, that
the Courts below had failed to see that the materials on record had clearly established that the
sisters, mother and father of the plaintiff were all living together at Thalingikkadu Thottam,
Pappampatti Village, Palladam Taluk. The suit had been filed by the plaintiff on the
instigation of the second defendant with the ulterior motive of defeating the valuable rights of
the first defendant in the suit schedule properties. The Courts below had failed to see that the
second defendant had never deserted the plaintiff at any point of time and the allegations in
the plaint have been invented only for the purpose of filing of the suit. The Courts below had
failed to see that the second defendant had released his rights in the suit schedule
properties in favour of the first defendant only after receiving due consideration. The suit
for partition, without a relief for setting aside the release deeds, was not maintainable in law.
The plaintiff cannot be construed as a co-owner or a co-sharer and therefore, the suit is
unsustainable in law. Since the release had been executed by the second defendant as the
kartha and manager of the Hindu joint family, he had the right to execute such a document,
so as to make it valid and binding upon the plaintiff, who was a minor. The Courts below had
failed to see that the suit valued under Section 37(2) of the Tamil Nadu Court-fees and
Valuation Act is not correct, as the plaintiff ought to have valued the suit under Section 37(1)
of the Act.
9. The second appeal had been admitted on the following substantial questions of law:
 “1. When the plaintiff is disputing the right of the 2 nd defendant to execute a
release deed in favour of the 1 st
defendant whether the present suit for partition
without seeking to set aside the said release deed is maintainable in law?
2. When the plaintiff failed to discharge his burden to prove that the suit II item is
an ancestral property or joint family property whether the Courts below are correct
in granting the relief of the plaintiff in respect of the said item?”
10. Learned counsel appearing on behalf of the appellant had reiterated the stand taken
by the first defendant in his written statement filed before the trial Court in O.S.No.295 of
1989. He had submitted that the Courts below had not appreciated the oral and documentary
evidence available before them in their proper perspective. It was contended that the plaintiff
had filed the suit in collusion with the second defendant with an ulterior motive of defeating
the valuable rights of the appellant in the second appeal. It was also contended that the
release deeds, dated 12.12.1988 and 14.12.1988, had been executed by the second defendant
after receiving due consideration. It was also contended that the plaintiff could not be
construed as a co-owner, or a co-sharer in the suit schedule properties and that the suit
for partition without a relief for setting aside the documents of release is not maintainable in
law.
11. Learned counsel appearing on behalf of the respondents had submitted that the
Courts below had come to the right conclusion after due appreciation of the oral and
documentary evidence available on record. The Courts below had rightly held that the
plaintiff is entitled to 1/6th share of the second item of the suit schedule property.
12. The trial Court as well as the first appellate Court had found that the second item of
the suit schedule property was a joint family property and that the plaintiff was entitled to
1/6th share in the suit property. In view of the findings of the Courts below, the relief claimed
by the plaintiff for partition is maintainable and the findings of the Courts below that the
plaintiff is entitled to 1/6th share of the second item of the suit schedule property is right in
law. As rightly held by the Courts below, the plaintiff had sufficiently proved his rights over
the second item of the suit schedule property.
13. The lower appellate Court, while confirming the judgment and decree of the trial
Court, had held that the first item of the suit schedule property belonged to Deivanaiammal as
separate property and therefore, the plaintiff was not entitled to any share in it. With regard to
the second item of the suit schedule property, it was held that the plaintiff is entitled to 1/6th
share in the said property as it belonged to the family of the defendants as an ancestral
property and that the second defendant could not execute the release deed with regard to it
without the permission of the Court.
14. The lower appellate Court had also found that the second defendant and his sisters
had executed a release deed in favour of the first defendant without including the plaintiff,
who was a minor, as a party. In law, prior permission ought to have been obtained from the
Court before dealing with a property that belonged to a minor. It was found that the second
defendant had not obtained such a permission with regard to the second item of the suit
schedule property. It was also found that it was not mentioned in the release deed that the
second defendant had executed the said document as a manager or the kartha of the joint
family properties. Further, it had not been stated that the release deed was executed for the
benefit of the family or due to necessity or to repay the family loans. Since the release deed,
marked as Exhibit A-2, cannot be said to be binding on the plaintiff, it was held that he was
entitled to the relief of partition and separate possession of 1/6th share of the second item of
the suit schedule property. Thus, the first appeal, was dismissed by the judgment and
decree of the lower appellate Court, dated 09.03.1994 in A.S.No.214 of 1993, confirming the
judgment and decree of the learned Subordinate Judge, Tiruppur, dated 08.01.1993, in
O.S.No.295 of 1989.
15. In view of the findings of the Courts below, it is clear that the release deed, marked
as Exhibit A-2, dated 14.12.1988, cannot be held to be binding on the plaintiff as no prior
permission had been obtained from the concerned Court before it was executed by the
second defendant.
16. In view of such findings by the Courts below, it was held that the plaintiff is
entitled to 1/6th share of the second item of the suit schedule property. Once when the release
deed executed by the second defendant was held to be not binding on the plaintiff, as the
second defendant did not possess the right to execute the release deed in favour of the first
defendant, the substantial question of law raised in the second appeal is answered in favour of
the plaintiff holding that the suit instituted by the plaintiff is maintainable in law.
17. While both Courts below have found that the second item of the suit schedule
property is an ancestral joint family property, based on the oral and documentary evidence
available on record, it is not open to the appellant herein to contend that the plaintiff had
failed to discharge his burden proving that the said property is an ancestral joint family
property.
18. Appreciation of evidence by the Courts below and the findings of the Courts
below based on such appreciation of evidence cannot, normally, be a substantial question of
law before this Court in the second appeal as held by the Supreme Court in its recent
judgment in Gurdev Kaur and others v. Kaki and others, 2007 (1) CTC 334.
19. On analysing the rival contentions made on behalf of the parties concerned and on
a perusal of the records available, this Court is of the considered view that the Courts below
had come to the right conclusion, based on available evidence, that the plaintiff is entitled to
1/6th share of the second item of the suit schedule property.
20. In such circumstances, the appellant has not shown sufficient cause or reason
for this Court to interfere with the findings of the Courts below. In such view of the
matter, the second appeal stands dismissed, confirming the judgment and decree of the
Courts below. No costs.
Appeal dismissed.

[2007 (2) TNCJ471(Mad)]

MADRAS HIGH COURT
BEFORE:
M. CHOCKALINGAM, J.
JOHN MATHEW ...Petitioner
Versus
P. NARESH KUMAR ...Respondent
[C.R.P. (NPD) Nos. 1071 and 1162 of 2006, decided on 18 June, 2007]
th

(A) Tamil Nadu Buildings (Lease and Rent Control) Act, 1960—Section 25—
Revision—Against order dismissing the eviction petition—Legality of—Tenant
occupied the building in July, 1999 pursuant to a registered lease agreement—Agreed
to pay Rs. 36,000/ as monthly rental—Paying to some extent—Landlord alleged
default and also wilful default—Courts below found there was an advance of Rs. 3
Lakhs available—Default was but not wilful default—Finding of both the authorities
not erroneous—Affirmed.
(Para 9)
(B) Tamil Nadu Buildings (Lease and Rent Control) Act, 1960—Section 25—
Revision—Eviction suit on the ground of act of waste—Suit decreed—Appeal—Allowed
eviction decree set aside—Legality of—Inspection by Advocate Commissioner—Act of
waste mentioned in detail—Mentioned in the course of the pleading—Affirmed by the
tenant what are all found in the course of the Commissioner’s report—Does not require
any more evidence—Whether these additions and alterations made are acts of waste
or not—Clauses 14 and 15 of lease deed—Demolition of walls and removal of the
ceramic tiles in the floor, etc.—Alterations and additions are not temporary in nature
—Rather have been done in a manner which would affect the structure of the demised
property—No consent of landlord obtained—All things done by tenant—Nothing but
an act of waste—Landlord is entitled for an order of eviction—Order of appellate
Court is unsustainable—Set aside—Eviction order passed by Rent Controller is
restored. (Paras 10 to 15)
Case law.—(1993) 2 S.C.C. 614; 2005 (4) L.W. 1.
Counsel.—Mr. K.P. Ashok, for the petitioner; Mr. P.B. Balaji, for the respondent.
JUDGMENT
M. CHOCKALINGAM, J.—This order shall govern these two revisions which have
arisen from an order of the VIII Judge, Court of Small Causes, Madras, made in two RCAs
namely RCA No.966/2004 at the instance of the tenant and RCA No.740/2004 at the instance
of the landlord who failed in both the forums.
2. The Court heard the learned counsel on either side and looked into the materials
available.
3. The landlord approached the Rent Controller originally with an application for
eviction in RCOP No.335 of 2003 on the ground of wilful default alleging that the property
was let out to the tenant in the month of July 1999; that the monthly rental was Rs.36,000/-;
that there was a written agreement, a registered one, between the parties; that he was put in
possession also; that there was a default in making payment of rental, which was wilful, and
hence, an order of eviction should be passed. The same was contested by the tenant, and it
was also dismissed on 16.3.2004 by the XII Judge of Court of Small Causes, wherefrom
RCA No.740/2004 was filed.
4. The same landlord filed another RCOP No.912 of 2003 on the grounds that the
tenant, when he was in occupation of the building, has made number of alterations and has
demolished number of portions, which has directly impaired the use, utility and value of
the building, and thus, he has committed an act of waste, and he was to be evicted. The said
application was seriously contested by the tenant. It was taken up by the XIII Judge,
Court of Small Causes, and the application was allowed on 26.7.2004. Aggrieved, the
tenant took it on appeal in RCA No.966 of 2004. The said appeal was taken up by the
appellate authority along with the other appeal for enquiry, and a common judgment was
rendered, whereby the petitions filed by the landlord, were dismissed. Hence, these revisions
have arisen before this Court.
5. Advancing his arguments on behalf of the revision petitioner, the learned counsel
would submit that in the instant case, there was a written agreement between the parties; that
there is a specific clause in the lease deed that the lessee shall not carry out any structural
alterations whatsoever in the demised premises; that despite the same, so many alterations
were made; that all have been narrated in the course of the application; that an Advocate
Commissioner was also appointed; that he made an inspection of the premises after notice to
the parties; that he has put 9 Clauses in his report, wherein he has pointed out that alterations
have been made in the building and even the ceramic tiles were removed from the field, and
some of the walls have been demolished; that the petitioner examined himself as P.W.1
where he has categorically stated about the alterations which are structural in nature; that it is
pertinent to point out that the respondent-tenant also examined himself as R.W.1; that he has
also admitted what was all stated by the Commissioner in his report; that agreeing with the
case of the petitioner-landlord, the Rent Controller has given a detailed order
recording a finding that all those structural alterations have been done, and they have been
noted by the Commissioner in his report, and they are all nothing but act of waste, and
therefore, the petitioner-landlord was entitled for an order of eviction and accordingly,
passed so; but, the appellate forum has set aside that order on the grounds that they were not
structural alterations, and they cannot be termed as an act of waste; but, they are all adding to
the value of the property, and the Advocate Commissioner was not technically qualified,
and he is not competent to speak about the act of waste, and under the circumstances, the
order of the Rent Controller was to be set aside, and accordingly set aside. The learned
Counsel took the Court to the part of the Commissioner’s report and the admissions made by
the respondent-tenant before the Rent Controller as to the alterations made, and also relied on
the lease deed entered into between the parties. The learned Counsel would submit that
Clause No.14 of the lease deed speaks about the fact that the lessee should not carry out any
structural alterations; that under the circumstances, the appellate forum should have affirmed
the order of the Rent Controller, but failed to do so, and hence, both the revisions have got to
be ordered, and the order of eviction has got to be restored.
6. Insofar as the second application, it is contended by the learned counsel for the
petitioner that it is an admitted position that originally, the rental was Rs.36,000/-, as per the
lease deed; that the only plea that was taken by the tenant before the Rent Controller was that
there was an advance of Rs. 3 lakhs with them, and it was not a part of the agreement, and on
the next day to the agreement, there was a demand draft given, and it was made for the
purpose of advance; that in view of the fact that advance was available, both the authorities
below have found that there was default, but, it cannot be termed as wilful default in view of
the advance in the hands of the landlord; that the said finding was also affirmed by the
appellate forum; that the said view taken by the authorities below is erroneous, and it
has got to be set aside. In support of his contention, the learned Counsel relied on a
decision of the Apex Court reported in (1993) 2 SCC 614 (Vipin Kumar v. Roshan Lal nand
and others).
7. Countering the above contentions, the learned counsel for the respondent-tenant
would submit that in the instant case, there was no act of waste at all; that the Advocate
Commissioner has gone to the spot, made an inspection and filed the report; but, a reading of
the report would clearly reveal that it is true that there were alterations and additions
made; but, they were necessary for carrying on the business of the tenant; that these
alterations and additions have added the value of the building; that it also added to the use
and utility of the building, and under the circumstance, at no stretch of imagination, it could
be termed as act of waste. The learned counsel also relied on Clause 15 of the lease deed,
which, according to him, would permit the tenant to make necessary alterations and additions
suitable to the business, which are temporary in nature. The learned counsel would further
submit that the parties entered into the agreement for making such alterations and additions
which have been actually done by the tenant, and under the circumstances, though the Rent
Controller has taken an erroneous view, the same was set aside by the appellate forum; that
the appellate forum has clearly pointed out that the Advocate Commissioner was not
technically qualified, and he cannot speak about the alterations and additions, whether there
are acts of waste or they added to the use, utility and value of the building, and under the
circumstances, the order of the appellate forum has got to be sustained. The learned counsel
reiterated the findings of both the forums insofar as the ground of wilful default. In support
of his contentions, the learned Counsel relied on a decision of the Apex Court reported in
2005 (4) L.W. 1 (Hari Rao v. N. Govindachari and others).
8. The Court paid its anxious consideration on the submissions made, looked into the
materials available and made a thorough scrutiny of the decisions relied on by the
respective sides.
9. Admittedly, the respondent-tenant occupied the building of the revision petitioner-
landlord in July 1999 pursuant to a lease agreement, a registered one, wherein he has agreed
to pay Rs.36,000/- as monthly rental, and he was paying so to some extent.
Thereafter, according to the landlord, there was a default and also wilful default. Now, both
the authorities below have found that in view of the decision of the Supreme Court, while
there was admittedly an advance of Rs.3 lakhs available, there was default; but, it
cannot be stated to be wilful default. Therefore, as far as that ground is concerned, the
finding of the both the authorities below have got to be affirmed.
10. As far as the other application filed by the landlord seeking eviction on the ground
of act of waste is concerned, this Court has to necessarily restore the order of the Rent
Controller. In the instant case, an Advocate Commissioner was appointed to make an
inspection of the property, and the Advocate Commissioner on notice, made an inspection
of the property. In his report, he has mentioned the act of waste as detailed below:
“(1) Main walls (shown in orange) in front facing 2 nd Avenue Road was
demolished and broken in several places and openings for installation of
some rolling shutters were made.
(2) New brick wall with beams and pillars being constructed in the front
shed shown as Red Colour.
(3) Two RCC pillars with Plinth beam being erected inside the front shed
main wall in the front at place marked A1 and A2.
(4) Ceramic tiled flooring being fully unearthed (Removed).
(5) The western side main wall broken in two places for window gaps shown
as Brown Colour.
(6) The Southern and Eastern side of main wall of FOL and wash area being
demolished in area shown as B1 (as shown in Green colour).
 (7) The main wall of the main building (rear side main portion) facing 11 th
Main Road, demolished for making door way opening, shown in Pink
Colour.
There were building materials such as bricks, sand, jelly, etc. stocked both
outside and inside the premises. Further there was lot of debris lying in
several places inside the petition premises.
(8) The Glazed tiles in several portions in FOL area (B1) broken and removed.
(9) Wall plastering being removed in several places in front light roofing shed
area.”
11. Now, at this juncture, it is pertinent to point out that all the alterations and
additions which are noticed by the Advocate Commissioner, were actually mentioned in
the course of the pleading. When the petitioner-P.W.1 has been examined, he has
spoken about all these facts. Now, the comment made by the opposite side that no one
further witness was examined would be futile. Once the Advocate Commissioner, an Officer
of the Court, was appointed, and he made an inspection on notice, and he filed the report,
wherein he has enumerated all the alterations and additions as found therein, and further the
respondent-tenant as R.W.1 has also in the course of his evidence at the time of the cross-
examination, has affirmed what are all found in the course of the Commissioner’s report, this
Court is of the considered opinion that it does not require any more evidence.
12. The next question that would arise for consideration would be whether these
additions and alterations could be considered as act of waste or not. The learned counsel for
the respondent would submit that it is true that alterations have been made, but they have
added to the utility and value of the building. The learned counsel for the respondent read the
provisions of Section 10(2)(i) and would submit that so long as the act of waste is not found
or noticed or shown, the application deserves an order of dismissal. This Court is unable to
agree with the contentions put forth by the learned counsel for the respondent-tenant. It
would be more apt and appropriate to reproduce Clauses 14 and 15 as found in the lease
deed, a registered one, entered into between the parties. Clause 14 reads as follows:
“14.The Lessee shall not carry out any structural alterations whatsoever in the
‘Demised Premises’...”
Clause 15 reads thus:
“The Lessee is permitted to make necessary alterations and additions suitable to the
business, which are temporary in nature and will not in any manner affect the
structure of the ‘Demised Premises’....”
13. Clause 14 would clearly reveal that the lessee shall not carry out any structural
alterations, and if at all he has to make any alterations or additions necessary for carrying
on the business, he can make so, which are temporary in nature, but not a permanent one.
Added further, Clause 15 makes it clear that the lessee should not in any manner affect the
structure of the demised premises. What are all stated by the Commissioner in his report,
would clearly indicate the demolition of the walls and removal of the ceramic tiles in the
floor, etc. Now, the contention that these alterations added to the value and utility of the
building can, at no stretch of imagination, be countenanced. What are all could be seen is
that the so-called alterations and additions are not temporary in nature; but, they have been
done in a manner which would affect the structure of the demised premises. What has
been done by the tenant is nothing but in violation of the Clause 14 which stipulates that the
lessee should not carry out any structural alterations whatsoever in the demised premises. It
is not the case of the respondent-tenant that he obtained consent from the petitioner-
landlord to make such alterations or additions; but, it is a case where all the things done
by him as narrated above, would clearly indicate that it was nothing but an act of waste.
14. So far as the decisions relied on by both sides are concerned, this Court has no
quarrel with the same; but, the decision relied on by the respondent-tenant, cannot be applied
to the present facts of the case. On the contrary, the decision relied on by the petitioner-
landlord, could be well applied to the present facts. Under the circumstances, there was
an act of waste, and the petitioner is entitled for an order of eviction. Hence, the order of
the appellate forum in RCA No.966/2004 can be made undone by upsetting the same.
Accordingly, it is set aside, and the order of the Rent Controller in RCOP No.912 of 2003 is
restored, and the application is ordered. As far as RCA No.740 of 2004 is concerned, the
order of the appellate forum is confirmed. Time for eviction is 6 (six) months. An affidavit
of undertaking shall be filed within one week herefrom.
15. In the result, C.R.P.No.1071 of 2006 is allowed, and C.R.P.No.1162 of 2006 is
dismissed. No costs.
C.R.P.No. 1071 of 2006 allowed.
C.R.P.No. 1162/ 2006 dismissed.

[2007 (2) TNCJ 477 (Mad)]

MADRAS HIGH COURT
BEFORE:
S. ASHOK KUMAR, J.
M/S. BANSILAL AND CO. REP. BY ITS PARTNERS ...Petitioner
Versus
SINGAMESETTY ATEENDROOLOO CHETTY’S
CHARITIES REP. BY ITS TRUSTEES ...Respondent
[C.R.P. (PD) No. 1087 of 2006 and M.P. No. 1 of 2006, decided on 18 April, 2007]
th

Civil Procedure Code, 1908—Order XVIII, Rule 3-A— Application to

examine as defendant witness in the case— Rejection of, on the ground that
intention is only to fill up the lacuna in the evidence of the witness examined as D.W.1
—Legality of—Trial Court failed to examine whether the applicant was placed in such
a situation or circumstances which had disabled him from being examined earlier,
though no prior permission was obtained—Applicant being a partner of the firm has
got every right to examine himself as a witness in support of his case—Not a
stranger to the suit—No prejudice would be caused to the plaintiff—Further evidence
on the side of the defendant was not closed—Suit was posted for further evidence—No
ill-motive can be attributed in filing application under Order XVIII, Rule 3-A of
C.P.C.—Order impugned set aside. (Paras 7
and 8)
Case law.—AIR 2000 Bom. 384; AIR 1978 Ori. 228; AIR 1979 P&H 72; AIR 1991
Ori. 15; 1996 (II) CTC 429; 1986 (II) MLJ 456; AIR 1987 Mad. 178; AIR 1985 Mad. 183.
Counsel.—Mr. V.V. Giridhar, for the petitioner; Mr. A. Venkatesan, for the
respondent.
 JUDGMENT
S. ASHOK KUMAR, J.—The revision petitioner/defendant has come forward with this
revision as against the order of rejection by the trial Court to examine himself as D.W.2 and
to mark certain documents.
2. The brief facts of the case are as follows:—
(a) The suit property belongs to the plaintiff, respondent herein. The suit property
which was a land was leased out to the petitioner firm in the year 1977 and the
petitioner had put up construction in the said premises. The respondent/plaintiff
filed the suit for recovery of possession from the petitioner/defendant The
petitioner/defendant filed written statement as well as made counter claim for the
relief of mandatory direction to the plaintiff to execute a lease deed in respect of
the suit premises for a period of 20 years.
(b) The plaintiff was examined and his evidence was closed. The suit was posted
for the evidence of the petitioner/ defendant. In the initial stage, the partner of
the defendant firm was not doing well and the firm had authorised a third
party, who is none other than the brother of the partners of the firm to give
evidence on their behalf. He was examined as D.W.1 in chief and also cross-
examined by the plaintiff side. The suit was posted for further evidence of the
defendant. At that time, the partner of the defendant’s firm filed the I.A., under
Order XVIII, Rule 3-A, CPC seeking leave of the Court to examine him as
D.W.2 for further examination and for marking certain documents. The plaintiff
resisted the said application and after enquiry, the trial Court dismissed the
application, holding that there is no need for examining the partner of the firm
and directed the defendant to file an application to recall D.W.1 for marking the
said documents. Hence, this revision.
3. Learned counsel for the revision petitioner contended that Order XVIII, Rule 3-A is
not mandatory in nature and it is directory in nature and if sufficient ground is made out, the
party may secure such permission as has been held in the decision reported in AIR 2000
Bom. 384, AIR 1978 Ori. 228, AIR 1979 P&H 72 and AIR 1991 Ori. 75. Placing reliance
upon the above decisions, the learned counsel submitted that in the present case, since the
defendant fell ill he could not attend the trial, they authorised D.W.1, their brother to give
evidence and now one of them (partner of the firm who fell ill) has become all right and now
he wants to give evidence and to mark certain documents in support of their case. Therefore,
the trial Court ought to have permitted him to give evidence and the rejection of the
application on the ground that the petitioners’ intention in filing the application is only to fill
up the lacuna in the evidence of D.W.1 is not correct.
4. The relevant provision of Order XVIII, Rule 3-A reads as follows:—
“Where a party himself wishes to appear as a witness, he shall so appear before any
other witness on his behalf has been examined, unless the Court, for reasons to be
recorded, permits him to appear as his own witness at a later stage.”
5. A plain reading of Order XVIII, Rule 3-A, CPC shows that the party who wishes to
appear as a witness, can depose before any other witness on his behalf has been examined.
However, if the plaintiff wants to appear and depose at a later stage, after examination of
his witnesses, he must obtain permission from the Court concerned. If the Court is satisfied,
after recording the reasons, it can permit the plaintiff to appear as his own witness at a later
stage. This provision has been interpreted by various decisions of this Court. Some of the
learned Judges have taken a view that it is a mandatory one and without prior permission, the
plaintiff cannot appear as a witness at a later stage. However, in some of the decisions, the
Hon’ble Judges of this Court have taken a view that it is only a directory and if petition is
filed at the time of his evidence showing sufficient cause, the Court can condone the said act
and permit him to appear as a witness at a later stage. Such a benevolent view has been taken
in the decisions of this Court reported in 1996 (II) CTC 429; 1986 (II) MLJ 456; and AIR
1987 Mad. 178. The above decisions would also make it clear that there is no stipulation of
time as to when the permission has to be sought for. If a party wants to appear as a witness,
he should do so prior to the examination of any witness on his behalf. Otherwise, if he wants
to appear at a later point of time if the Court permits, he can do so.
6. In Marappa Gounder v. Sellappa Gounder, reported in AIR 1985 Mad. 183,
Sathiadev, J., has held that if a party to the suit desires to be examined later on, he should
seek prior permission before other witnesses were examined. Whenever permission is
sought for, according to him, it is obligatory on the part of the Court to record reasons, by
passing a written order, either granting or refusing it. The learned Judge has expressed that if
permission is sought in the initial stage before any witness is examined, then reasons to be
given should relate to the justifiability on the part of the party to first examine himself.
Before granting permission, it should hear the objections, if any, of the other side, and then
alone permit any witness of the party to be examined. The learned Judge has also
observed that on such of those cases wherein without prior permission witnesses of the party
had been examined, and later on the party wishes to appear as a witness, the Court is duty
bound to find out, whether on the party being examined at that stage, it would result in filling
up any blank of any lacunae left out in the evidence already given, and whether he avoided
the witness-box with ulterior motives and whether he has placed in such a situation or
circumstances which had disabled him from being examined earlier, etc. It is further
observed that if compelling strong circumstances which are relevant and germane had
existed permission to a party to a proceeding to examine himself after his witnesses had been
examined, ought to be granted.
7. Considering the present case in the background of the above case laws, it is clear
that the trial Court has failed to examine whether the revision petitioner was placed in such a
situation or circumstances which had disabled him from being examined earlier, though no
prior permission was obtained. It is the case of the petitioner that he was unwell during the
material point of time. Further, as a partner of the firm, the revision petitioner has got every
right to examine himself as a witness in support of his case. Therefore, it cannot be said that
the petitioner’s intention is only to fill up the lacuna left out in the evidence already given by
D.W.1. It should also be borne in mind that in the present case that no prejudice would be
caused to the plaintiff/respondent as the petitioner is one of the partner of the petitioner-firm
and not a stranger to the suit proceedings. Further the evidence on the side of the
petitioner/defendant was not closed and the suit was posted for further evidence on the part
of the petitioner/defendant and therefore no ill-motive can be attributed to the revision
petitioner in filing this petition under Order XVIII, Rule 3-A, CPC. Therefore, in the facts
and circumstances of the case, the trial Court should have allowed the application filed by the
revision petitioner.
8. In the circumstances, I am of the view that the trial Court has erred in exercising the
jurisdiction vested in it in the proper perspective and had misdirected itself in dismissing the
application. In the result, the CRP is allowed, setting aside the order made in I.A.No. 9593 of
2006 in O.S.No. 7028 of 1998 by the learned II Assistant City Civil Court, Chennai.
Consequently, connected CMP is closed. No costs.
 Petition allowed.

[2007 (2) TNCJ481(Mad)]

MADRAS HIGH COURT
BEFORE:
J.A.K. SAMPATH KUMAR, J.
S. PARVATHAM AMMAL AND OTHERS ETC. ....Appellants
Versus
T.S. GANESAN ETC. ....Respondents
[A.S.Nos. 1090 of 1990 and 353 of 1991 with C.M.P. No. 637 of 2007, decided on 21 st
March, 2007]
(A) Civil Procedure Code, 1908—Section 96—Appeal—Against dismissal of suit
with reference to item No. 8 of the suit property—Genuineness of the Will in favour of
the first defendant proved—Assessment of evidence—Ex.B-3 Adangal extract is an
undisputed document—Defendants are in enjoyment of the land in S.No. 7/3—Land in
S.No. 7/3 as per chitta also has been transferred in the name of the second defendant—
Commissioner’s plan and report—Disputed land forms part of one unit—Evidence of
P.W.1—Analysis of—S.No. 7/3 which is item No. 8 in the schedule is under the
enjoyment of the defendants reflecting coconut thopu—And as such the plaintiff cannot
have a claim over the same—Finding of lower Court is in order and does not require
any interference.
(Paras 12 and 13)
(B) Civil Procedure Code, 1908—Section 96—Appeal—Suit for declaration and
injunction—Decreed in respect of item Nos. 1, 3 to 7 and 9—Legality of—Appreciation
of evidence—Adangal extract, chitta and patta—Lands are under the possession and
enjoyment of the defendants—Form part of one item referable to coconut Thopu—
Lower Court not analysed the oral evidence and documentary evidence in right
perspective—Wrongly held, disputed item is not coconut thopu—Disputed items Nos. 6,
7 and 9 form one unit and are in enjoyment of the defendants—Plaintiff not entitled to
the suit claim—Finding of lower Court in this regard set aside—Item Nos. 1, 3 and 5 of
the suit property form part of one unit referable to bamboo clusters, situated on the
southern side of the Cauvery river—No reference in the Will about the allotment of
land with bamboo clusters to the second defendant—Defendants cannot have a claim
over these lands—Plaintiff is entitled to claim over these lands—Lower Court rightly
decreed the suit in respect of item Nos. 1, 3 and 5—Finding needs no interference.

(Paras 14 to 17)
(C) Practice and procedure—Possession—To be proved by producing Adangal
extract—Not produced—Adverse inference to be drawn.
(Para 17.1)
(D) Specific Relief Act, 1963—Permanent injunction—Grant of—Adangal
extract, chitta and patta prove possession and enjoyment of defendant—Plaintiff not
entitled for permanent injunction in respect of such property—Order granting
injunction cannot sustain—Set aside. (Paras 17 and 18)
(E) Civil Procedure Code, 1908—Section 96—Appeal—Against granting decree
in respect of item No. 4—Legality of—Item No. 4 is in enjoyment of the defendant—
Evident from evidence, and patta, Commissioner’s report, plan—Finding of lower
Court unsustainable—Set aside. (Paras 20 and 21)
Counsel.—Mr. Uma Shankar, for the appellant; Mr. A. Muthukumar, for the
respondent.
JUDGMENT
J.A.K. SAMPATHKUMAR, J.—These appeals are filed against the Judgment and decree
dated 19.3.1990 made in O.S.No.50 of 1988 on the file of the Sub-Court, Mayiladuthurai in
and by which the learned Subordinate Judge partly decreed the suit and partly dismissed the
suit.
2. For convenience, the parties are referred as arrayed in the Original Suit. The brief
facts of the case are as follows:—
3. Plaintiff states as follows:—
3.1. The suit property was originally owned and possessed by one Sethurama Iyer,
father of the plaintiff. He died on 14.1.1980. In his life time, he executed a Will dated
4.9.1979 bequeathing the suit property in the name of the plaintiff.
3.2. The plaintiff taken possession of the suit property and enjoying the same and paid
kist for the suit land. Patta No.6 was issued in favour of the plaintiff.
3.3. The defendants have no right to the suit property. They have colluded together
and attempting to dispossess the plaintiff from the suit property. They are also questioning
the right of the plaintiff in respect of the suit property. The defendants are threatening to
encroach upon the suit property by illegal means. Hence, the suit.
4. Defendants state as follows:—
4.1. The suit property, no doubt, is situate at Umambalpuram and the same belong to
Sethurama Iyer. The Will dated 4.9.79 is also admitted. The suit properties are in patta
No.6. But those properties are given to the second defendant absolutely. In the said
Will, two coconut thopes situate north of river Cauvery Karai, are given to the 2 nd defendant
absolutely; pattah also was changed in the name of 2nd defendant by the proceedings of the
Tahsildar, Mayiladuthurai No.139/83-84 – Sub-division 2/2, dated 22.3.1984. All the suit
properties, except R.S.No.7/2 is in the name of the second defendant.
4.2. The suit properties also do not belong to the plaintiff. They will not come under
the category of “tpLgl;l brhj;Jf;fs;”. The suit properties, except RS.S.No.7/2 were specifically
given to second defendant. Hence, the plaintiff has no title or possession of the suit
properties. R.S.No.7/2 measuring 42 cents was given in exchange on 13.10.1981 by the
plaintiff to one N.Chandrasekaran. The same is a trust property dedicated to the Pillayar
temple. The plaintiff has no right over the said property in his individual capacity.
4.3. Being the trust property, the plaintiff is not competent to give in exchange to third-
parties, and the first defendant is making arrangements to cancel the same. Even the said
item is in the possession of the 1st defendant. Being the eldest son, he succeeded to the
post of the Trusteeship. The first defendant is managing the property, on behalf of the 2 nd
defendant.
 4.4. The plaintiff has asked only for relief of declaration and injunction in respect of
the ground site. No relief was asked in respect of the standing trees. There is also a Bore-
pumpset in R.S.No.7/3. It was installed by the second defendant and the electric
connection also is in her name. The plaintiff by paying a nominal court fee is attempting to
get declaration for the trees as well as the pump-set. The item numbers 9 and 7 in the suit
property formerly were nanja property and they have been converted to punja
subsequently. Hence, the suit is liable to be dismissed.
5. Plaintiff examined as P.W.1. Ex.A.1 to Ex.A.23 were marked on the side of the
plaintiff. 2nd defendant examined as D.W.1. One Mr.Venugopal examined as D.W.2. Ex.B.1
to Ex.B.11 were marked on the side of the defendants to confront the claim of the plaintiff.
Ex.C.1 to Ex.C.7 were marked on as Court Exhibits.
6. Upon hearing the rival claims and analysing the evidence on record, the lower Court
decreed the suit in respect of item Nos. 1, 3 to 7 and 9 of the suit property while dismissing
the suit in respect of item Nos.2 and 8 of the suit property.
7. The plaintiff filed A.S.No.353 of 1991 against the dismissal of the suit with
reference to item No.8 of the suit property. Whereas, defendants 1 and 2 filed A.S.No.1090
of 1990 against the decree in respect of item Nos.1, 3 to 7 and 9 of the suit property.
8. Heard Mr.Umashankar, learned counsel for the plaintiff and Mr.A.Muthukumar for
the defendants.
9. Learned counsel for the plaintiff/appellant while reading the Will of the testator,
which is the subject-matter of the suit expressed the mind of the testator contending that the
suit properties excluding item No.2 bequeathed in the name of the plaintiff/
appellant by the testator and that the plaintiff taken possession of the same and enjoying it
after transferring patta No.6 in his name and therefore, the plaintiff is entitled to suit claim.
10. Learned counsel for the defendants/appellants contended that two coconut thopu
referred in the Will, which is the subject matter of the suit is with reference to the suit
property except item No.2 and that patta of the same was transferred in the name of the
second defendant and that the suit properties are in the enjoyment of the defendants and
therefore, the plaintiffs are not entitled to the suit claim.
11. Upon hearing the various submissions of the counsel on record in respect of right
of the parties with reference to suit items, the points for determination are:—
(1) Whether item No.8 and land in Survey number 5/11 and survey number 6
form part of one unit reflecting Coconut Thopu under the enjoyment of the
defendants?
(2) Whether the finding of the lower Court in dismissing the suit with
reference to item No.8 of the suit property is in order?
(3) Whether item Nos.6, 7 and 9 of the suit property form part of one unit
referable to coconut thopu under the enjoyment of the plaintiff?
(4) Whether the finding of the lower Court in decreeing the suit for title with
reference to item Nos.6, 7 and 9 of the suit property is in order?
(5) Whether the plaintiff is in enjoyment of item Nos.6, 7 and 9 of the suit
property to sustain his claim of permanent injunction against the
defendants?
 (6) Whether item Nos.1, 3 and 5 of the suit property form part of one unit
referable to Bamboo clusters?
(7) Whether the plaintiff has got a claim over item Nos.1, 3 and 5 of the suit
property?
(8) Whether the plaintiff is not in possession of item Nos.1, 3 and 5 of the suit
property?
(9) Whether the plaintiff is in possession and enjoyment of item Nos.1, 3 and 5
of the suit property to sustain his claim of permanent injunction against the
defendants?
(10)Whether the finding of the lower Court in decreeing the suit for title with
reference to item Nos.1, 3 and 5 of the suit property is in order?
(11)Whether item No.4 is the family property of the plaintiff and the defendants?
(12)Whether patta for item No.4 of the suit property transferred in the name of the
second defendant?
(13)Whether the plaintiff can have a claim over item No.4 of the suit property as the
same not reflect in the sketch Ex.A-9 filed by the plaintiff to sustain his claim?
12. Point No.1:—
12.1. Suit properties are referred to nine items as follows:-
brhj;J tptuk;
kapyhLJiw jhYf;fh. 38/2 ckhk;ghs; g[uk;
t/vz;/ Mh;/v!;/vz; brz;l;;!;
1/ Mh;/v!;/vz; 4-2 0/17 brz;l;;!; 0/81
2/ Mh;/v!;/vz; 7-2 0/42 brz;l;;!; 2/10
3/ Mh;/v!;/vz; 7-9 0/04 brz;l;;! /19
4/ Mh;/v!;/vz; 14-3 0/34 brz;l;;!; 1/62
5/ Mh;/v!;/vz; 7-7 0/23 brz;l;;!; 1/09
6/ Mh;/v!;/vz; 14-5 1/90 brz;l;;!; 9/03
7/ Mh;/v!;/vz; 14-6 0/53 brz;l;;! 2/52
8/ Mh;/v!;/vz; 7-3 1/76 brz;l;;! 8/36
9/ Mh;/v!;/vz; 368-2 0/30 brz;l;;!; 1/50

TLjy; 5/69 27/22

Out of which, the plaintiff has given up his claim in respect of 2 nd item of property.
Similarly, the land in S.No.5/1 and S.No.6, which is under the enjoyment of the defendant
was not under dispute not included in the suit item. It is also admitted that the land in S.No.6
and 5/1 referred to Coconut thopu according to plaintiff.
12.2. The second defendant while alive executed a Will in respect of the properties
obtained by her under the Will which is marked as Ex.A-1, the subject-matter of the suit
bequeathing the properties in favour of the first defendant. The said Will is unregistered.
12.3. The earlier Will executed by her in respect of the very same property which is
marked as Ex.A-19 was not given effect to. D.W-1 also has spoken in detail about the Will
executed by her in favour of D-1. So much so, she has also stated that the earlier Will
executed by her in favour of the plaintiff was not given effect to.
12.4. P.W.1 in fact elicited these points at the time of cross-examination of D.W.1.
Her evidence in this regard is as follows:—
“tHf;F epYitapy; ,Uf;Fk; nghJ 1987y; jhth brhj;jpd; xU gFjpia
vdf;F ,Ujaneha; ,Ug;gjhy; Kjy; vjph;thjpapd; bgahpy; xU brl;oy;bkz;l; vGjp
itj;jpUe;njd;/ rpd;d igaDf;F capy; vGj ntz;Lk; vd;W epidj;J xU capy; vGjpndd;/
mJ mKYf;F tutpy;iy/”
12.5. This part of evidence at the time of cross-examination by the plaintiff given a
quiteous to the genuineness of the Wills referred above.
12.6. The genuineness of the Will executed in favour of the first defendant was not
confronted by the plaintiff. So, there cannot be any objection at all by the plaintiff in
accepting the genuineness of the Will. So, the genuineness of the Will binds the plaintiff as it
was subjected to cross-examination at the Will of the plaintiff, though it was not the subject
matter of litigation on hand. So, I hold that the genuineness of the Will in favour of the first
defendant has been proved.
12.7. It is a specific case of the plaintiff that two Coconut thopu referable in the Will
related to two Coconut thopu situated in the land in S.No.6 and 5/1 and not with reference to
any land consists of Coconut thopu and therefore, plaintiff claims absolute right in respect
of land in S.No.7/3. Whereas, learned counsel for the defendants/appellant submitted
that the land in S.Nos.7/3, 6 and 5/1 together form part of one unit as the same is equated to
one Coconut thopu as per the recitals in the said Will and therefore, the plaintiff had no right
in land in S.No.7/3. It is also the case of the defendants that the land in S.Nos.7/3, 6 and 5/1
are under the enjoyment of the defendant which fact was confronted by the learned counsel
for the plaintiff.
12.8. Now, let me refer the evidence of P.W.1 and also the Commissioner’s report
which are marked as Ex.C-1 to Ex.C-7 coupled with Ex.B.2 and Ex.B.3 to find out the
genuineness of the submissions of the parties to the proceedings. Ex.B.3 is Adangal which
was not disputed by the plaintiff. Adangal register proves the enjoyment of the land as per
this issue is concerned.
12.9. Now, I have to find out whether the plaintiff has got a claim over the land in
Survey No.7/3 coupled with the enjoyment with reference to the same. There is no dispute as
per Adangal extract which was marked as Ex.B-3. The defendant was in enjoyment
of the land in Survey No.7/3 as on 31.10.1984. The suit was filed on 27.10.84. According to
the plaintiff, he was in enjoyment of the land in S.No.7/3 on the date of the filing of
the suit. In the ground reality, the plaintiff was not in possession of the land in S.No.7/3 as
per Ex.B-3. Ex.B-3 was not questioned by the plaintiff while the same was marked through
the defendant. If the plaintiff was really in enjoyment of the land in S.No.7/3, his name
would find a place in Adangal extract. The plaintiff has not chosen to file any Adangal
extract to confront the claim of the defendant. So, I am of the view that the document viz.,
Ex.B-3 is an undisputed document. This is one way of approach to render a finding that the
defendant is in enjoyment of the land in S.No.7/3.
12.10. The land in S.No.7/3 is in the enjoyment of the defendant. Admittedly,
patta of the land in S.No.7/3 was transferred in the name of the second defendant. Ex.B-2 is
the proof to this fact. B-4 is the Chitta. The land in S.No.7/3 as per chitta also has been
transferred in the name of the second defendant.
12.11. Now let me look into the Commissioner’s plan and report to find out
whether the land under dispute is in one unit under the enjoyment of the plaintiff or
otherwise. It is admitted by the plaintiff that the disputed land was inspected by the
Advocate Commissioner in the presence of the plaintiff and the defendant. The important
recitals in respect of this issue referred to in Ex.C-1 reads as follows:—
“thjpapd; tHf;fwp”h; nf/Re;juuh$d; mth;fSk; gpujpthapd; tHf;fwp”h;
nf/Rg;gpukzpad; mth;fSk; cld; ,Ue;J jhth ,lj;ij Rl;of; fhl;odhh;fs;”
......”jhth ,lkhdJ ,uz;L Vf;fUf;F mjpfkhd bjd;dk; njhl;lk;/ mjpy; fzf;fpy;
ml’;fhj bjd;id ku’;fSk;. ghf;F ku’;fSk;. 5 gyh ku’;fSk; ,uz;L bghpa khku’;fSk; cs;sd/
,jpy; Kd; gFjpapy; xU nkhl;lh; gk;g[brl; fl;olk; cs;sJ /
......”gk;g[brl;Lf;F mUfhikapy; bjw;nf capUld; cs;sJ/ ,e;j ,uz;Lk; btl;lg;glhj
caph; ku’;fs;/ btl;lg;gl;l ku’;fs; ,uz;L/”.
.......”jhth ,lk; kpfg;bghpa njhl;lkhf ,Ug;gjhy; bjd;id ku’;fSk;. ghf;F ku’;fisa[k;
vz; Qk; mstpy; ,y;iy/ ku’;fs; mjpfkhf cs;sJ/ Vida ,uz;L khku’;fSk; ey;y tpiyapy;
cs;sJ/”
Along with the report, two sketches were filed by the Advocate Commissioner.
12.12. On a perusal of the sketches along with the report of Ex.C-1, I found that the
disputed land in this issue form part of one unit; Motor shed found in survey number 7/3.
Water Tub is also found in Survey number 7/3. From this water tub, water is drawn to
irrigate the land in respect of other survey numbers more particularly in S.Nos.5/1 and 6.
Similarly, the 1st part of the report in Ex.C-3 relates to the land in Survey numbers under
dispute in this issue. Similarly, the first part of the report in Ex.C-5 reflects the land in
dispute in this issue. So much so, the first part of the report in Ex.C-6 also reflects the land
under dispute in this issue. The sketch in Ex.C-7 would also prove that the disputed land in
this issue form part of one unit.
12.13. Now let me look into the evidence of P.W.1 to find out the real truth in this
regard. The evidence of P.W.1 in this regard reads as follows:—
“mapl;lk; 8 rh;nt vz; 7-3 ghf brhj;J ,Uf;fpwJ/ mjpy; khkuk; gyh
kuk; ,Uf;fpd;wd/ rh;nt vz; 7-3 capy; ruj;Jgo vdf;F fpilf;fntz;oa brhj;J/ rh;nt vz; 7-3
mjw;F fpHf;nf cs;s brhj;J rh;nt vz; 6-3 Mfk;/ mJ vdJ jhahUf;F ghj;jpag;gl;l
bjd;de;njhg;g[/ mjw;Fk; fpHf;nf 5-1 bjd;de;njhg;g[ MFk;/ mJt[k; vdJ jhahUf;F
brhe;jkhdJ/ “
“////////////vdJ jfg;gdhh; bgahpy; ,Ue;j nkhl;lhh; brl; 7-3,y; ,Ue;jJ/ me;j
kpd; ,izg;g[ vdJ jfg;gdhh; bgahpypUe;J vdJ jhahh; bgaUf;F khw;Wk; nghJ vdJ
jhahUld; xnu Flk;gj;jpy; ,Ue;njd;///////////”.
“///////////1983,y; ehd; guhkhpj;J te;j ilhpapy; mf;fiw bfhy;iy vd;W ifg;gl
vGjp ,Uf;fpnwd;/ 7-3. 6-3. 5-1 Mfpatw;iwjhd; mf;fiw bfhy;iy vd;W nkw;go tPjk;
vdJ ilhpapy; tpthpj;J ,Uf;fpnwd;/ me;j Fwpg;g[ ml’;fpa ilhp v/rh/M/1/ fPH;
mf;fiw bfhy;iy vd;Wk; me;j ilhpapy; Fwpg;g[ vGjpapUf;fpnwd;/ 5-1. 6. 7-3
Mfpad vdJ rpwpa ghl;o thshk;ghSf;F brhe;jkhdJ//////////////”
“//////////7-3. 6. 5-1 Mfpad K:d;Wk; fhtphp fiuf;F tlf;fpy; ,Uf;fpwJ///////////////”
12.14. The evidence of P.W.1 as narrated above would also show that the land under
dispute form part of one unit. So much so, they are under possession and enjoyment of the
defendants. Defendants are paying consumption charges to the Electricity Department. Exs.
B-7, 8 and 9 are the receipts. No where it was stated by the plaintiff that the motor shed is
under his occupation and paying consumption charges to Electricity Department for the
same. As per Adangal, land in S.Nos.7/5, 5/1 and 6 is in the enjoyment of the defendants.
From the narration of the events, I am satisfied that the land in Survey Number 7/3, which is
item No.8 in the suit schedule is under the enjoyment of the defendants reflecting Coconut
thopu and as such, the plaintiff cannot have a claim over the same. Therefore, this point is
answered against the plaintiff.
13. Point No.2:—In view of the finding rendered in Point No.1 , I am satisfied that the
plaintiff cannot have a claim over the land in Survey No.7/3, which is item No.8 of the suit
property. The lower Court has rightly taken note of the ground reality of the evidence
available on record and rightly rejected the claim of the plaintiff with reference to item No.8
of the suit property. The lower Court finding is in order and does not require any
interference. Hence, this point is answered in favour of the plaintiff.
14. Point No.3:—
14.1. Learned counsel for the plaintiff reiterated the contention made in point
No.1 and contended that the land in item Nos.6, 7 and 9 are not related to coconut thopu and
as such, the plaintiff is entitled to further relief. Learned counsel for the defendants
reiterated the submissions made at point No.1 and submitted that the land referable to item
Nos.6, 7 and 9 is a coconut thopu as one unit as per Will and as such, the plaintiff cannot
have a claim over the same.
14.2. In this context also, it is useful to refer the evidence of P.W.1 coupled with Court
exhibits and the documents filed on the side of the plaintiff and the defendants to find out the
genuineness of the case of the parties to the suit. The Commissioner’s report marked as
Ex.C-3 deals the point in this regard which reads as follows:-
(1) bjw;F tlf;F Fj;jhyk; m”;rhWthh;jiy nuhl;low;Fk; nkw;nf rh;nt vz;/14-5. 1
Vf;fh; 90 brz;l;.
(2) 14-6y; 0/53 brz;l;
(3) 14-3y; 0/34 brz;l; Mf 2/77 tp!;jPh;zk; cs;s ,lk;/
(4) ,e;j ,lj;Jf;F tlf;nf rh;nt vz;/ 368-2y; 0/30 brz;l; e”;ir jhpR
fplf;fpwJ/ ,jpy; ,uz;L bjd;id kl;Lk; cs;sJ/
(5) ,e;j ,lk; ehd;F gf;fKk; caph; ntypfshy; milf;fg;gl;L K:’;fpy;
nfl;Lfshy; ,Uk;g[ g{l;L nghl;L g{l;lg;gl;L ,Ue;jJ/ vjph;kDjhuh; ntiyahs;
xUth; jpwe;J tpl;lhh;/
(6) List of assets:—
1/ fha;f;ff; Toa bjd;id ku’;fs; 120
2/ ghf;Fku’;fs; 33
3/ gid ku’;fs; 15
4/ rt[f;if ku’;fs; 2
5/ bghpa khku’;fs; 12
6/ g[spa ku’;fs; 3
7/ bey;yp ku’;fs; 7
8/ ntk;g[ 1
 9/ njf;fd; ku’;fs; 4
10/ ehfyp’;f kuk; 1
11/ Jh’;F K:”;rp bghpa kuk; 4
12/ Jh’;F K:”;rp rpwpa kuk; 2
13/ vYkpr;ir 1
14/ kh’;fd;W 1
15/ ,Yg;ig 1
16/ xjpad; 1
17/ g{tuR 2
18/ nfzp giHikahdJ 1
The above report is with reference to the land situated in S.Nos.14/5, 14/6 and 368/2.
As per the sketch and report, they form one unit. About 120 coconut trees found there. The
evidence of P.W.1 in this regard reads as follows:—
“...... 9tJ mapl;lk; rh;nt vz; 368-2 jpUkd”;nrhp fpuhkj;ij nrh;e;jJ/ 368-2
jdpahf ,Uf;fpwJ/ 14-6. 14-5k; xnu ntyp milg;g[f;Fs; ,Uf;fpd;wd/ rh;nt vz; 14-6
jhthtpy; e”;irahf bfhLj;J ,Uf;fpnwdh//////////////////////////////////////////////////////////////////
Rkhh; 10 tUl’;fshf jhprhf ,Uf;fpwJ/ 14-5. 14-6 Mfpad xnu milg;g[f;Fs;
xd;whfnt ,Uf;fpwJ/”
14.3. Though this witness had stated that the land in S.No.368/2 is separate situated in
Thirumanancheri Village, as per Ex.A-9, this land is abutting to the land in Survey No.14/6.
Land in S.Nos.368/2 and 14/6 are contiguous to each other. They are situated on the western
side of the road. In fact, Ex.A.9 relied on by the plaintiff to sustain his claim. The
Commissioner’s report and Ex.A.9 would show that the land in S.Nos.14/5, 14/6 and 368/2
form part of one item situated on the western side of the road. These lands are encircled with
a fence. As per the Commissioner’s report, the servant of the defendants has opened the gate
for inspection. The evidence of P.W.1 in this regard reads as follows:—
......”ePjpkd;w Mizah; tHf;fpil brhj;ij ghh;itapl te;jnghJ mjw;fhd g{l;L rhtpia ahnuh
xUth; te;J bfhLj;jhh;/ mJ ahUila Ms; vd;W vdf;F bjhpahJ/ tHf;fpil brhj;Jf;F g{l;L.
rhj;J fpilahJ/ uhkfpUc&;zd; vd;w Mis ehd; ntiyf;F itj;Js;nsd;/ ePjpkd;w Mizah;
te;jnghJ g{l;L rhtp ahh; bfhLj;jJ vd;W bjhpahJ/ nfl;Lk; bjhpe;Jf;
bfhs;stpy;iy/////////”
14.4. The Adangal extract, chitta and patta would show that these lands are under the
possession and enjoyment of the defendants.
14.5. However P.W.1, in his evidence stated that he employed one Ramakrishnan to
take care of the disputed property. His evidence in this regard reads as follows:-
“.......uhkfpUc&;zd; vd;w Mis ntiyf;F itj;Js;nsd;/”
The plaintiff has not stated in the plaint that the suit property was under the control of
one Ramakrishnan employed by him. Even otherwise, the plaintiff not examined the said
Ramakrishnan to prove that the suit property was under the control of the said Ramakrishnan
who was employed by him. The Adangal extract would show that the disputed property was
under the enjoyment of the defendants.
14.6. The Adangal extract, chitta and patta are the documentary evidence shows that
the disputed land form part of one item referable to Coconut Thopu under the enjoyment of
the defendants.
 14.7. However, the lower Court has not analysed the evidence of oral and documentary
evidence in right perspective and held wrongly that the disputed item is not Coconut thopu
and ultimately decreed the suit in favour of the plaintiff.
14.8. In such view of the fact, I am of the considered view that the disputed item
Nos.6, 7 and 9 form one unit and is in enjoyment of the defendants. Therefore, the plaintiff is
not entitled to the suit claim. Therefore, the finding of the lower Court in this regard is liable
to be set aside and accordingly set aside. Hence, this point is answered against the plaintiff.
15. Point Nos.4 and 5:— In view of the finding rendered in Point No.3, I am
constrained to hold that the finding of the lower Court in this regard is not in order and,
therefore, the same is set aside. These points are answered against the plaintiff.
16. Point Nos.6 and 7:—
16.1. No doubt, it is true that item Nos.1, 3 and 5 of the suit property form part of one
unit referable to Bamboo clusters. It is not the case of the defendants that the land referable
to Bamboo clusters allotted to the second defendant by the testator in the said Will. Even
according to the plaintiff, the coconut thopu allotted to the second defendant situate on the
north of Cauvery river. The evidence of D.W.1 in this regard reads as follows:—
“..........fPHz;il bfhy;iy nkyz;il bfhy;iy ,uz;ila[k; ehd; rh;t Rje;jpukhf
milantz;Lk; vd;W vdJ fzth; capypy; vGjp itj;jpUf;fpwhh;/ fhtphp fiuf;F tlf;nf cs;s
bjd;de;njhg;g[fs; 2 vd;W capypy; mth; fz;oUg;gJ fPHz;il kw;Wk;
nkyz;il ,Uf;ff;Toa v’;fsJ jhth brhj;ijj;jhd; Fwpf;Fk;/.........”
The recital in Ex.A.1 reads as follows:—
“......Fj;jhyk; fhnthp fiuf;F tlf;fpy; cs;s bjd;de;njhg;g[fs; ,uz;ila[k; vd; rk;rhuk;
rh;t Rje;jpu ghj;jpakha; mile;J bfhs;s ntz;oaJ/ “
16.2. In the Will, it is stated that the two Coconut thopu allotted to second
defendant situated on the north of the Kuthalam Kaveri river. The disputed bamboo clusters
situated on the southern side of the Cauvery river. There is no reference in the Will about the
allotment of any kind of land to the second defendant with reference to the land viz., Land
with Bamboo clusters on the southern side of the Cauvery river. In such view of the fact, the
defendants cannot have a claim over these lands.
16.3. The land in item Nos.1, 3 and 5 of the suit property form part of one unit
referable to bamboo clusters and not referable to Coconut thopu. In such view of the fact, the
plaintiff is entitled to claim over such land.
16.4. The lower Court has rightly held that the plaintiff is entitled to claim over the
land referable to item Nos.1, 3 and 5 of the suit property. The finding of the lower Court is in
order and does not require any interference. Hence, these points are answered in favour of
the plaintiff.
17. Point No.8:—
17.1. The evidence available on record would show that the lands in item Nos.1, 3 and
5 of the suit property are in possession and enjoyment of the defendants. Even according to
the plaintiff, his alleged possession in respect of the suit property is only by proxy.
According to him, one Ramakrishnan was looking after the suit property. He has not
chosen to examine the said Ramakrishnan to prove possession of the disputed land by proxy.
Whereas the Adangal extract would show that the defendant alone is in enjoyment of the suit
property. If really the plaintiff is in enjoyment of the suit properties with reference to the
item Nos.1, 3 and 5 of the suit property, his name would definitely find a place in the
Adangal extract. The plaintiff miserably failed to file Adangal extract to prove his
possession. In the absence of production of documentary evidence an adverse inference has
to be drawn against the plaintiff.
17.2. Whereas the defendant produced Adangal, Chitta and patta to prove his
possession and enjoyment. In such view of the fact, the plaintiff is not entitled for permanent
injunction in respect of those property as the same was in possession and enjoyment of the
defendants. Hence, this point is answered in favour of the defendants.
18. Point No.9:—In view of the finding rendered in point No.8 the finding of the lower
Court in granting permanent injunction in respect of these items of the property cannot
sustain and therefore the finding of the lower Court in this regard is liable to be set aside and
accordingly set aside. Hence, this point is answered against the plaintiff.
19. Point No.10:—In view of the finding rendered in point Nos.6 and 7, I am of the
considered view that the finding of the lower Court in decreeing the suit for title with
reference to item Nos.1, 3 and 5 is in order and does not require any interference. Hence, this
point is answered in favour of the plaintiff.
20. Point No.11:—The plaintiff claims title over item No.4 of the suit property.
Though the defendants stated that item No.4 is not in family property of the plaintiff and the
defendants, the patta relied by them would show that patta for this land was transferred in the
name of the second defendant. Therefore, I am of the considered view that item No.4 is
the family property of the plaintiff and the defendant for which patta has been transferred in
the name of the second defendant. Hence, this point is answered accordingly.
21. Point No.12 and 13:—
21.1. The plaintiff relied on Ex.A-9 to sustain his claim. However, there is no
reference to item No.4 of the suit property in Ex.A-9 and no explanation was offered by the
plaintiff for such omission. According to the evidence and also patta, this item is in
enjoyment of the defendant. There are coconut trees and bamboo clusters standing in the
land in Survey No.14/3 which is under dispute. Commissioner’s report, Plan of Ex.A-9
would show that the land in S.No.14/3 form part of one unit along with land in S.No.14/5,
14/6 and 368/2 (Item Nos.6, 7 and 9).
21.2. Patta for this property is standing in the name of the second defendant.
Documents Ex.A-9, Ex.B-3 and Ex.B-4 together shows that the plaintiff cannot claim with
reference to item No.4 of the suit property. Therefore, the finding of the lower Court in
granting decree in this regard is not in order and the same is liable to be set aside and
accordingly it is set aside and hence, these points are answered against the plaintiff.
22. (I) In the result, A.S.No.353/91 fails and accordingly dismissed. However, the
parties have to bear their respective costs.
(II) In the result, A.S.No.1090/90 is allowed in part with the following findings:—
(i) Judgment and decree of the Lower Court in respect of item Nos.6, 7, 9 and 4 is set
aside and accordingly, the suit is dismissed for relief of title and permanent
injunction.
(ii) Judgment and decree of the Lower Court in respect of item Nos.1, 3 and 5 is set
aside and the suit is dismissed for relief of permanent injunction only.
(iii) The decree in respect of other aspect is sustained.
(iv) However, the parties have to bear their respective costs.
Consequently, C.M.P.No.637 of 2007 stands closed.
 A.S.No. 1090/90 allowed.
A.S. No. 353/91 dismissed.

[2007 (2) TNCJ 496 (Mad)]

MADRAS HIGH COURT
BEFORE:
S. ASHOK KUMAR, J.
N. PRABU RAJ AND OTHERS ...Petitioners
Versus
M/S. PIONEER SOFTWARE PARK PVT. LTD.
REP. BY ITS DIRECTOR AND OTHERS ...Respondents
[C.R.P. (PD) No. 1098 of 2006 and M.P. Nos. 2 and 3 of 2006, decided on 12 th Ferbruary,
2007]
Tamil Nadu Court-Fee and Suit Valuation Act—Sections 25 (a), 25 (d), 27 (a) and
27 (c)—Applicability of—Reliefs sought—To declare ex parte decree as null and void—
And permanent injunction restraining defendants from in any manner interfering with
the peaceful possession and enjoyment by the plaintiff or its nominees of the
schedule mentioned property—Real intention of the plaintiff is to get a declaration of
title to the suit property by setting aside the ex parte decree—Court-fee is to be decided
not by the mere reliefs found in the prayer column but by the whole of the plaint
averments—Denial of title of the defendants to the suit property—Plaintiff is bound to
pay court-fee as required under Section 25 (a) and Section 27 (a) of the Act for the
reliefs claimed, based on the averments contained in the plaint—Trial Court to decide
the issue of pecuniary jurisdiction as the court-fee is to be paid on the market value of
the property.
(Paras 6, 9 and 13 to 15)
Case law.—1959 M.L.J. 355; 1979 (II) M.L.J. 11; AIR 1974 S.C. 270.
Counsel.—Mr. T.R. Rajagopalan, S.C., for Muthappan, for the petitioners; Mr. P.R.
Raman for Mr. S.Saravanan for respondent 1; and respondents 2 to 7 given up.
JUDGMENT
S. ASHOK KUMAR, J.—This revision has been preferred by the defendants in the suit
O.S.No.109 of 2006 as against the dismissal of the I.A.No.442 of 2006 filed by them under
Order VII, Rule 11, CPC to reject the plaint on the ground of under valuation of the suit by
the plaintiffs.
2. The suit has been filed by the plaintiff, first respondent herein for declaration of the
ex parte decree dated 27.1.2006 passed by the Additional Subordinate Judge, Chengalpattu
in O.S.No. 244 of 2005 as null and void and for permanent injunction retraining the
defendants 1 to 3 from interfering with the possession and enjoyment of the plaintiff
over the suit property on the averments that the plaintiff purchased the suit property from
the 5th defendant by a sale deed dated 18.2.2004 for a sale consideration of Rs.1.04
crores, that they have been in possession and enjoyment thereof from December, 1996
onwards under a Memorandum of Undertaking entered into with the 5 th defendant on
10.12.1996, that the defendants 1 to 3 filed a suit in O.S.No. 255 of 2005 fraudulently in
collusion with the defendants 4 and 6 to 9 before the Addl. Sub-Court without
impleading the plaintiff, that the defendants 1 to 3 obtained ex parte decree fraudulently on
27.1.1996 and that they attempted to interfere with the possession and enjoyment of the
plaintiff on 1.5.2006 by taking advantage of the ex parte decree. The plaintiff valued the
prayer for declaration relating to the ex parte decree under Section 25(d) of the Tamil Nadu
Court-Fee and Suit Valuation Act, at Rs.1000/- and paid a court-fee of Rs.75.50. He has
valued the prayer for injunction under Section 27(c) of the said Act at Rs.4,59,000/- and paid
a court-fee of Rs.34,425.50.
3. While that be so, the revision petitioners, defendants 1 to 3 have filed the I.A., to
reject the plaint by alleging that they have obtained delivery of possession of the suit
property through E.P.No.55 of 2006 in the said suit, that the plaintiff should seek the relief
of declaration of title and recovery of possession of the suit property by valuing the suit under
Section 25(a) of the Act, that the suit without such prayer is not maintainable, that the
market value of the suit property as per the sale deed dated 18.2.2004 is Rs.1.40 crores, that
the suit for declaration is to be valued at Rs.70,00,000/- under Section 27(a) of the Act as
the title is in dispute and that the trial Court has no pecuniary jurisdiction to try the suit if the
suit is valued as above.
4. The said I.A., was resisted by the plaintiff by filing a counter objecting that the
plaintiff has traced their title over the suit property by pleadings and documents, that the
plaintiff has challenged the fraudulent and collusive decree passed in O.S.No. 244 of
2005 without impleading them as party, that as per the plaint averments, there is no dispute
over the title of the suit property, that the provisions contained in Section 25(a) and Section
27(a) are not attracted and that they have correctly valued the suit under Sections 25(d) and
27(c) of the T.N.C.F and S.F. Act.
5. The learned Additional Subordinate Judge, Chengalpattu on a consideration of the
averments of the parties and the submissions of the respective counsels, dismissed the said
I.A., holding that since the plaintiff did not challenge the title of the defendants over the suit
property and as the plaintiff has not sought for any declaration of title, or recovery of
possession as according to them the possession still remains with them, the plaintiff cannot
be asked to value the suit property on the market value and pay the court-fees under
Sections 25(a) and 27 (a) of the said Act. Aggrieved over the same, the present revision has
been preferred by the defendants.
6. The question arise for consideration in this revision is whether the suit is to be
valued under Sections 25(a) and 27(a) of the Court Fees Act or under Sections 25(d) and
27(c) of the Court Fees Act?
7. The very reliefs sought for in the prayer of the Plaint read as follows:—
“(i) Declaring that the ex parte deed dated 27.1.2006 passed by the Learned Additional
Subordinate Judge, Chengalpattu in O.S.No:244 of 2005 as null and void;
(ii) Granting permanent injunction restraining the defendants 1 to 4 and 6 to 9, their
men, servants, agents or any other persons claiming under or through them from in
any manner interfering with the peaceful possession and enjoyment by the
plaintiff or its nominees of the schedule mentioned property;”
8. The main contention of the learned counsel for the revision petitioners/defendants is
that the real intention of the plaintiff in the suit is for declaration of title since the title of the
plaintiff is disputed by the defendants. To fortify this contention, the learned counsel for the
revision petitioners drew the attention of the Court to the very averments in the Plaint which
reads as follows:—
“3. The plaintiff is filing the present suit seeking for a declaration that the
judgment and decree passed by the learned Additional Subordinate Judge,
Chengalpattu dated 27.1.2006 passed in O.S.No.244 of 2005, field by the
defendants 1 to 3 herein as null and void and also for a declaration that the
plaintiff herein is the absolute owner of the property situate in S.Nos.282/4 and
282/6 at 141, Kottivakkam Village, Chengalpattu Taluk, Kancheepuram District
more fully described in the Schedule herein and for consequential reliefs....”
xxx xxx xxx
“17.....Therefore, unless the ex parte decree dated 27.1.2006 passed in O.S.No.244
of 2005 is set aside and the plaintiff is declared as lawful and true owner of the
schedule mentioned property, the threat from defendants 1 to 4 and 6 to 9 will
continue. Therefore, the plaintiff is left with no other option than to approach
this Hon’ble Court seeking to declare that the ex parte decree dated 27.1.2006
passed in O.S.No.244 of 2005 as null and void and for a declaration that the
plaintiff is the lawful and true owner of the schedule mentioned property.
Hence the present suit.”
9. From the above pleadings found in the plaint, it is very clear that the real intention
of the plaintiff is to get a declaration of title to the suit property by setting aside the ex parte
decree, for which the court-fee should be paid under Section 27(a) of the Court-Fees Act.
10. In 1959 MLJ 355, (Gnanambal Ammal v. Kannappa Pillai and others) this Court
held as follows:—
“In order to determine the class under which a suit falls for purposes of court-fee,
the substance of the relief as disclosed in the plaint, taken as a whole, should be
looked into and not the form of the prayer in which the relief is cast. A plaintiff
cannot be allowed to evade the payment of proper fee or undervalue the suit for
purposes of jurisdiction by omitting to ask for a relief when the success of suit
depends on the relief being granted to him. The basis of determination of court-fee
is, of course, the suit as laid in the plaint and not the contentions in the defendant’s
written statement. But when, in the course of the trial, it appears that it is the
intention of the plaintiff to interpret his plaint in one way for purposes of court-fee
and in another way during the trial, it is for the Court to construe the plaint and
determine what it really asks for, taking into consideration the substance and not
merely the form of the relief prayed for.”
“Where in spite of profuse allegations in the body of the plaint about the deeds
being sham and nominal, the relief asked for cannot be granted without the deeds
being cancelled or set aside, the suit must be held to be in substance one for
cancellation or setting aside of the deeds which are an obstacle to the plaintiff’s
claim and, therefore, suit would fall under Section 40 of the Madras Act XIX of
1955; and under Section 53 of the Act, the value for court-fee would determine the
value for purposes of jurisdiction also.”
11. In 1979 MLJ (II) page 11 (Kasthuri and others v. Seth Ghanshamdas Vonsimal
Deva Bank) Justice M.M.Ismail, as he then was observed as follows:—
 “There can be no doubt whatever that for the purpose of determining the court-fee
payable it is the substance of the relief that a plaintiff prays for that has to be taken
into account and not the technical form of the prayer. If it is to be otherwise,
mere astuteness and ingenuity of the person drafting the plaint will have the effect
of not only camouflaging and disguising the real relief which a plaintiff claims in
a suit but also nullifying and defeating the provisions of law dealing with the
payment of court-fee based on the nature of the relief litigants seek in a Court of
law.”
12. In Shamsher Singh v. Rajinder Prashad and others, reported in 1974 SC page 270,
the Hon’ble Supreme Court held that mere astuteness in drafting the plaint will not be
allowed to stand in the way of the Court looking at the substance of the relief asked for.
13. From the decisions referred to above, it is clear that for the purpose of determining
the court-fee, it is the substance of the relief that the plaintiff prays for has to be taken into
account and not the technical form of prayer as held by the Hon’ble Supreme Court and this
Court and mere astuteness and ingenuity of the person drafting the plaint will have the
effect of not only camouflaging and disguising the real relief which a plaintiff claims in a
suit but also nullifying and defeating the provisions of law dealing with the payment of
court-fee based on the nature of the relief litigants seek in a Court of law.
14. The court-fee is to be decided not by the mere reliefs found in the prayer column,
but by the whole of the plaint averments. What is the requirement and relief sought for by the
plaintiff has to be seen by reading the whole plaint and not by seeing the reliefs column
alone. Even if there is a hidden relief, which is not mentioned in the prayer and the same is
covered by a veil and not invincible, it is the duty of the Court to lift or pierce through the
veil and find out the real substance of the relief which the plaintiff prays for. As far as this
case is concerned, the relief though mentioned in the prayer is for declaration to declare the
earlier decree as null and void, but the real intention is for declaration of title to the property.
The real intention is exposed in Paragraphs 3 and 17 of the plaint itself as mentioned earlier.
There is also a denial of the title of the defendants to the suit property. Therefore, the plaintiff
is bound to pay the court-fee as required under Section 25(a) and Section 27(a) of the
Tamil Nadu Court Fees and Suit Valuation Act for the reliefs claimed, based on the
averments contained in the Plaint. Since the court-fee is to be paid as per Sections 25(a) and
27(a) of the Act, the market value of the property, it is for the trial Court to decide the issue
of pecuniary jurisdiction.
15. In the result, this CRP is allowed setting aside the order of the learned Additional
Subordinate Judge, Chengalpattu. Consequently, connected Miscellaneous Petitions are
closed. No costs.
Petition allowed.

[2007 (2) TNCJ 501(Mad)]

MADRAS HIGH COURT
BEFORE:
S. MANIKUMAR, J.
S. MARIAMMAL ....Appellant
 Versus
KRISHNAMURTHY AND OTHERS ....Respondents
[C.M.A. (NPD-B) No. 1125 of 2005, decided on 16 th March, 2007]
(A) Practice and procedure—An unwarranted order of remand gives the
litigation an underserved lease of life and therefore, it should be avoided.
(Para 13)
(B) Practice and procedure—In a case of injunction, where a specific finding is
given in respect of possession of a property and where a partial decree is given—
Dismissal of the suit in the absence of an appeal filed by the defendant is erroneous.
(Para 14)
(C) Practice and procedure—In a matter of injunction, the Appellate Court
would not interfere with the finding, unless Lower Court has acted unreasonably or
ignored certain facts placed before the Court.
(Para 14)
(D) Civil Procedure Code, 1908—Order XLI, Rule 23— Exercise of power—
To do complete justice between the parties—Purely discretionary—Adequate materials
available on record—Appellate Court itself could have disposed off the appeal on merits
without setting aside the entire judgment and decree of the trial Court—Order of
remand is unsustainable—Set aside—Direction issued to dispose of the appeal on the
basis of pleadings and evidence available on record in respect of the disputed land
which is the subject matter of the appeal. (Paras 16 and 17)
(E) Civil Procedure Code, 1908—Section 24—Joint trial of the suit—In absence
of specific power conferred lower appellate Court exceeded in its jurisdiction.
(Para 17)
(F) Practice and procedure—Only in a case where the decree is interlinked and
inseparable, then the decision rendered by the lower Court can be interfered with, in
the absence of an appeal.
(Para 16)
(G) Civil Procedure Code, 1908—Order XLI, Rule 33—Power under—To be
exercised only subject to three limitations.
(Para 15)
Case law.—AIR 1998 SC 3118; AIR 2002 SC 771; 2002 (3) LW 743; 2003 (3) MLJ
524; 2005 (3) LW 366; AIR 2003 SC 1989.
Counsel.—Mrs. R.T. Shyamala, for the appellant; Mr. V. Raghupathi, for the
respondents.
JUDGMENT
S. MANIKUMAR, J.—This appeal is preferred against the judgment and decree
dated 03.11.2004 in A.S.No.53 of 2004 on the file of Principal Subordinate Judge,
Nagapattinam.
2. Brief facts leading to the appeal are as follows:
(i) The plaintiff purchased the suit property from Thiru. Gnanasambandam and his
sons under the registered Sale Deed dated 13.05.1981. The vendor Thiru.
Gnanasam-bandam purchased the suit property and other properties from Thiru.
Bhagwandas. The plaintiff owns some other lands in the village, where the suit
 property is located. The suit property is situated in S.No.20/9, to the North of
Sivan North Street, Puttur village. When the suit property was purchased by the
plaintiff, there was a house and it was later on altered. There was also a cattle
shed. Thiru. Subbarama Nadar, who owned the land in S.No.20/9 had donated a
small portion of the land to the school and his son had sold some portion of the
land in the same Survey number to one Thiru. Subramanian. The said property
has now been purchased by Velankanni Arokia Matha. A rough sketch is marked
along with the plaint. The portion marked as ‘ABCD’ in the suit sketch has been
gifted to the school. Prior to the purchase of the property by the plaintiff, the
school was located in an old concrete building (Tharsu building). The western
side of the compound wall of the school property and the western side wall of the
school building fall in the same line. The building constructed in the northern
side of the school building ends with the compound wall and it is shown as
‘BC’ in the rough sketch. There are five windows on the western wall of the
school building. The property situated on the northern side of the wall marked as
‘BC’ belongs to the plaintiff. The plaintiff is in possession and enjoyment of the
suit property.
(ii) The first defendant is the Headmaster of the school. The school is administered by
the Panchayat Union. The first defendant is acting on the ill-advice of the second
and third defendants. The second defendant is a retired Police Constable. He
owns land on the western side of the school property. There is a dispute between
the plaintiff and the second defendant with regard to the boundary. Right from the
beginning, there is dispute between them and cases are pending. Now with the
assistance of the third defendant, the second defendant is acting as if, he is
supporting the school administration and claims that he has got lands on the
northern side of the school compound wall. The first defendant has approached the
Tahsildar and other revenue authorities for taking immediate steps. Since the
plaintiff is also a teacher, the Revenue authorities requested the plaintiff’s husband
to provide place for nutritious meal centre for which the plaintiff’s husband
informed that he would reply within 10 days. In the meantime, on 04.01.2001,
defendants 1 to 3 removed the window on the northern side of the compound wall
and attempted to trespass into the plaintiff’s property. Regarding the attempt made
by defendants 1 to 3, a complaint was lodged with the Nagapattinam Town
Police. Though the police came to the spot and cautioned the defendants, no useful
purpose was served. The defendants did not heed to the reply given by the
plaintiff, that he would give a proper reply later on to the defendants as regards
providing place for nutritious meal centre. On the instigation of the defendants,
students have attempted to trespass into the plaintiff’s property through the broken
window. Unless the defendants and their men are restrained from interfering with
the possession and enjoyment of the suit property, the plaintiff will be put to
serious and irreparable loss.
Therefore, the plaintiff filed a suit for permanent injunction restraining the
defendants from interfering with or otherwise causing disturbance in the peaceful
possession and enjoyment of the suit property. The prayer in the suit was amended
later on.
(iii) The third defendant filed a detailed written statement and the same was adopted by
defendants 1 and 2. The defendants admitted that on 13.01.1981, the plaintiff
had purchased the property in S.No.20/9. But the description of the property is not
 properly given. The area of the scheduled property has not been properly
mentioned in the plaint. Though it is stated in the plaint that Subbarama Nadar had
donated a small portion of the land in S.No.20/9, the extent of the land donated by
him has been specifically suppressed. The rough sketch filed along with the plaint
is also incorrect. It is admitted that two items of property to an extent of 37 cents
and 50 cents were purchased by the plaintiff on 13.05.2001.Only the second item,
namely, 50 cents has been mentioned in the plaint schedule and this is done
deliberately to twist the case. The defendants admitted that they have broken
the window and further submitted that the plaintiff has suppressed the reasons for
the same and filed the suit.
(iv) The land gifted by Thiru. Subbarama Nadar to the school in S.No.20/9 runs 22
metres, east to west in Sivan north street and 20 metres, south to north. In the said
land, a building was constructed in the year 1972 and a R.C. building was put up in
1994. The school building is to an extent of 15 metres, east to west and 12 metres
south to north. There is a vacant space on the western side of the school building
to an extent of 7 metres, east to west and 4 metres, south to north. The plaintiff has
put up a building in the vacant space on the western side. He has also put up a
cattle shed by annexing the compound wall of the school building on the western
side. The plaintiff has also encroached the vacant space of 4 metres on the
northern side of the school building. On the representation of defendants 1 and 2, a
petition was presented to the District Collector and the encroachments were
removed. Thereafter, the District Collector, Tahsildar, Panchayat Union
Commissioner inspected and measured the lands. The plaintiff accepted to
give adequate lands from his property to the school in lieu of the land, on which he
had put up the construction and the cattle shed. On that basis, the properties were
measured on 04.01.2001. Boundary stones were laid in the lands belonging to the
plaintiff, situated on the northern side of the school. Adequate space was marked
for construction of Nutritious Meal Centre and steps were taken in this regard.
(v) While that be the factual position, the plaintiff had suddenly instituted a suit
against the defendants, who were in no way connected with the action of the
authorities. The description of the suit property is not properly given in the
schedule and the property shown in the sketch does not belong to the plaintiff.
The defendants have no connection in respect of the property purchased under the
sale deed dated 13.05.1981. As per the Taluk records, 11 cents of land in
S.No.20/9 is registered in the name of the school. The plaintiff has sought
injunction in respect of the school properties also. The plaintiff ought to have
impleaded the Government Officials as parties to the suit and that the suit is liable
to be dismissed for non-impleading of necessary parties. In respect of the same
schedule mentioned property, the plaintiff has filed another suit in O.S.No.148
of 2001 against the Government Officials and that suit is still pending. In that suit,
the present defendants have not been impleaded as parties. The present suit is filed
only to grab the scheduled mentioned property and hence the defendants prayed
for dismissal of the suit.
(vi) The Lower Court framed the following issues for consideration :
(a) Whether the plaintiff is in possession of the suit properties ?
(b) Whether the contention of defendants that 11 cents of land in S.No.20/9 is
registered in the name of the school is correct?
 (c) Whether the contention of the defendant that the plaintiff has annexed the
school property is correct?
(d) Whether the suit is bad for non-joinder of proper parties?
(e) Whether the plaintiff is entitled to the relief of permanent injunction ?
(f) To what relief the plaintiff is entitled to?
(vii) The husband of the plaintiff was examined as P.W.1 and three documents were
marked on behalf of the plaintiff. On behalf of defendants, two witnesses were
examined as R.W.1 and R.W.2 and Exs.R1 to R15 were marked. Out of 50 cents of
land in Survey No.20/9, the Lower Court held that the plaintiff is entitled to a
decree of permanent injunction for 45 ¼ cents of land only and dismissed the suit
in respect of 4 ¾ cents of land. Aggrieved by the judgment and decree for the
remaining portion of 4 ¾ cents, the plaintiff preferred an appeal in A.S.No.53 of
2004 on the file of Principal Sub-Court, Nagapattinam.
(viii) In the appeal, the plaintiff contended that the finding of the Lower Court that he
has put up construction in the school property is not supported by any documentary
evidence. He further contended that the finding of the Lower Court that the school
building is located on the northern side of the boundary line marked as ‘BC’ in the
sketch is erroneous. He further submitted that in the absence of examination of the
third defendant, who has filed the written statement, the Court below ought to have
rejected the oral and documentary evidence let in by R.W.1, second
defendant. Exs.R1 to R15 are only copies of complaint sent against the plaintiff
with an intention to grab the property. The lower Court totally misdirected itself in
rejecting the relief of injunction for the remaining 4 ¾ cents of land, on the
ground that the school requires additional space for toilet and nutritious meal
centre. The plaintiff further contended that if the lower Court had come to the
conclusion that the plaintiff has encroached upon the school property, then there
could only be a direction to remove the encroachment under due process of law.
Therefore, the plaintiff prayed that the appeal may be allowed and the relief of
permanent injunction be granted in respect of 4 ¾ cents of land.
(ix) The Appellate Court proceeded on the footing that the boundaries of the plaint
schedule property of 50 cents have not been properly given by the plaintiff that he
has not taken steps to identify the location of the property and in particular, the
boundary between the school and the plaintiff’s property. In the plaint annexed to
the Commissioner’s Report, the Appellate Court found that the plaintiff’s
daughter’s house was located on the western side of the school building. The
Appellate Court raised a doubt that the suit property was adjoining the school
building. P.W.1, plaintiff’s husband has deposed that the Revenue
Authorities had given notice to the plaintiff to remove the encroachment and the
same was challenged in this Court by way of a writ petition. D.W.2, Village
Administrative Officer has deposed that the school is located in S.No.20/9 and the
same is also registered in the revenue records. He further deposed that the
properties were measured and the extent of encroachment was also identified.
(x) In the absence of any appeal filed by the defendants as against the judgment and
decree in respect of 45 ¼ cents of land, the Appellate Court came to the conclusion
that the plaintiff has not approached the Court with clean hands and that the lower
Court ought not to have granted a decree for injunction. The Appellate Court found
that inasmuch as the plaintiff has not taken any steps to measure the property by
 appointing an Advocate Commissioner, the judgment and decree rendered by the
Lower Court in respect of 45 ¼ cents of land are liable to be set aside. The
Appellate Court set aside the judgment and decree in toto, notwithstanding the fact
that the appeal was filed by the plaintiff only in respect of 4 ¾ cents and remanded
the matter to the trial Court for retrial and further ordered that that the properties
should be measured by an Advocate Commissioner with the assistance of a
Surveyor and that the parties be permitted to let in oral and documentary evidence.
Taking note of the fact that the plaintiff has filed another suit in O.S.No.148 of
2001 against the Government Officials for injunction in respect of the same
property, the Appellate Court ordered joint trial of both the suits. Aggrieved by the
order of remand and further direction, the plaintiff has filed the present appeal.
3. Heard Mrs. R.T.Shyamala, learned counsel for the appellant and Mr. V. Raghupathi,
learned counsel appearing for respondents.
4. Learned counsel for the appellant submitted that the appeal was filed only in respect
of 4 ¾ cents of land in S.No.20/9 and the lower Court has already granted permanent
injunction in respect of 45 ¼ cents of land. In the absence of any appeal filed by the
defendants challenging the decree in respect of 45 ¼ cents of land, the lower Court has erred
in setting aside the entire judgment and decree. She further submitted that the decree in
respect of 45 ¼ cents has become final and that the appellate Court has no jurisdiction to
reverse the judgment and remand the matter to the lower Court.
Learned counsel for the appellant further submitted that the finding of the appellate
Court that the plaintiff has not impleaded the proper parties for effective adjudication is also
erroneous for the reason that the decree would bind only the parties in the suit and that the
aggrieved persons have not come forward with any application to implead themselves in the
suit nor they have prayed for a joint trial of both the suits. She also submitted that the
appellate Court is only a subordinate Court, which is not vested with the jurisdiction of
transfer or to order joint trial of the suits under Section 24, C.P.C. Therefore, she
submitted that the appellate Court has exceeded in its jurisdiction in ordering joint trial. She
further submitted that the decision of the trial Court is based on oral and documentary
evidence adduced by parties and that the decree for permanent injunction granted by the trial
Court does not warrant any interference. Remanding the matter for fresh trial and for
appointment of an Advocate Commissioner is wholly uncalled for and in any event, when the
factual details are already available on record, the Appellate Court itself could have ordered
for an appointment of an Advocate Commissioner, if so required and dispose of the appeal on
merits. Finally, she submitted that the exercise of power of remand would only facilitate
the defendants to fill up the lacuna in the suit and the same is not permissible in law.
5. In support of her contentions, learned Counsel for the appellant cited the
following decisions :
(i) P. Purushottam Reddy and another v. M/s. Pratap Steels Ltd., AIR 2002 SC 771.
(ii) Jayaraman v. Kumaran and others, 2002 (3) L.W. 743.
(iii) Subbiah Konar and others v. State of Tamil Nadu through District Collector,
Tirunelveli and another, 2003 (3) MLJ 524.
(iv) S.Shanmugam v. S.Sundaram and others, 2005 (3) L.W. 366.
She submitted that the provisions under Order XLI, Rules 23 to 29, C.P.C. do not
inhibit the appellate Court from seeking further evidence or appointing an Advocate
Commissioner, if necessary and there is no necessity to remand the matter back to the Lower
Court, for that purpose.
6. Per contra, learned counsel for defendants/respondents submitted that the plaintiff
has filed two suits in respect of the same property, before the same Court, one against the
defendants in the present suit and other against the Government Officials. He submitted
that the plaintiff has attempted to annexe the school properties illegally.
Placing reliance on a decision of the Supreme Court in K.Muthuswami Gounder v.
N.Palaniappa Gounder reported in AIR 1998 SC 3118, learned counsel for
respondents/defendants submitted that the Lower Appellate Court has got powers under
Order XLI, Rule 33, C.P.C. to pass any decree or order even in the absence of an appeal filed
by the defendant and such power can be exercised under exceptional circumstances. He
submitted that since the plaintiff has not come out with the proper identity of the suit
property, the direction of the appellate Court to appoint an Advocate Commissioner to
measure the property with the assistance of a surveyor would only help the trial Court to
render a clear finding as regards the possession and enjoyment of the suit property by
the plaintiff. He further submitted that no prejudice would be caused, if an Advocate
Commissioner is appointed and the properties in possession of the School as well as the
plaintiff are identified. Learned counsel for the defendants/respondents submitted that there
is no error in the order of remand and prayed that the civil miscellaneous appeal be
dismissed.
7. Let us now examine some of the decisions cited by the counsel for the appellant
and as to whether they are applicable to the facts of this case:
(i) In P.Purushottam Reddy and another v. M/s.Pratap Steels Ltd., reported in AIR
2002 SC 771, the Supreme Court in paragraph 10 has held as follows :
“... It is only in exceptional cases where the Court may now exercise the power of
remand de hors the Rules 23 and 23-A. To wit, the superior Court, if it finds
that the judgment under appeal has not disposed of the case satisfactorily
in the manner required by Order XX, Rule 3 or Order XI, Rule 31 of the CPC and
hence it is no judgment in the eye of law it may set aside the same and send the
matter back for re-writing the judgment so as to protect valuable rights of the
parties. An appellate Court should be circumspect in ordering a remand when the
case is not covered either by Rule 23 or Rule 23-A or Rule 25, C.P.C. An
unwarranted order of remand gives the litigation an undeserved lease of life and,
therefore, must be avoided.”
(ii) In Jayaraman v. Kumaran and others reported in 2002 (3) L.W. 743, it is held that
if all the materials were available before the learned Single Judge, the appellate
Court in the first appeal has got every jurisdiction to go into the factual aspects and
give a factual finding. It is further held that in the absence of appeal filed against
the judgment and decree, the said judgment would operate as res judicata
between the parties.
(iii) In Subbiah Konar and three others v. State of Tamil Nadu through District
Collector, Tirunelveli and other reported in 2003 (3) MLJ 524, this Court in
paragraph 14 has held as follows :
“14. It is well settled that remand is not meant to give another chance to the
parties to fill up the lacuna or to substantiate what the plaintiffs or defendants
have failed to prove or establish. Remand is also not permissible to fill up the
 lacuna or to enable the parties to let in fresh evidence when the very plaintiffs
who come forward with the suit have failed to establish their case.”
(iv) In S.Shanmugham v. S.Sundaram and others reported in 2005 (3) L.W. 366, a
Division Bench of this Court has held that the provisions under Order XLI, Rules
23 to 29, C.P.C. are not a bar to take further evidence or to appoint a
Commissioner, if so necessary, and to try the appeal and there is no necessity to
remand the matter back to the Lower Court. The Lower Appellate Court itself can
try the matter after taking further evidence.
8. In a decision in K.Muthuswami Gounder v. Palaniappa Gounder reported in AIR
1998 SC 3118, the Apex Court has held as follows:
“Order XLI, Rule 33 enables the appellate Court to pass any decree or order which
ought to have been made and to make such further order or decree as the case may
be in favour of all or any of the parties even though (i) the appeal is as to part only
of the decree; and (ii) such party or parties may not have filed an appeal. The
necessary condition for exercising the power under the Rule is that the parties
to the proceeding are before the Court and the question raised property arises of the
lower Court and in that event the appellate Court could consider any objection to
any part of the order or decree of the Court and set it right. No hard and fast rule
can be laid down as to the circumstances under which the power can be
exercised under Order XLI, Rule 33, C.P.C., and each case must depend upon its
own facts. The rule enables the appellate Court to pass any order/decree which
ought to have been passed. The general principle is that a decree is binding on the
parties to it until it is set aside in appropriate proceedings, ordinarily the appellate
Court must not vary or reverse a decree/order in favour of a party who has not
preferred any appeal and this rule holds good notwithstanding Order XLI, Rule 33,
C.P.C. However, in exceptional cases the rule enables the appellate Court to
pass such decree or order as ought to have been passed even if such decree would
be in favour of parties who have not filed any appeal. The power though
discretionary should not be declined to be exercised merely on the ground that the
party has not filed any appeals.”
9. In the case of Banarsi and others v. Ramphal reported in AIR 2003 SC 1989, their
Lordships’ of the Supreme Court have held as follows :
“Usually the power under Rule 33 is exercised when the portion of the decree
appealed against or the portion of the decree held liable to be set aside or interfered
by the appellate Court is so inseparably connected with the portion not
appealed against or left untouched that for the reason of the latter portion being left
untouched either injustice would result or inconsistent decrees would follow. The
power is subject to atleast three limitations: firstly, the power cannot be exercised
to the prejudice or disadvantage of a person not a party before the Court; secondly,
a claim given up or lost cannot be revived; and thirdly, such part of the decree
which essentially ought to have been appealed against or objected to by a party and
which that party has permitted to achieve a finality cannot be reversed to the
advantage of such party.”
10. In the present case, the school building is located in S.No.20/9, measuring 11 cents,
east to west 22 metres, south to north 20 metres. The measurement of the school building is
15 metres, east to west, 15 metres south to north. The remaining portion of 4 metres on the
northern side and 7 metres on the western side is said to have been encroached upon by the
plaintiff. The Tahsildar, Panchayat Union Commissioner and the Village Administrative
Officer have measured the properties of the plaintiff and the school and thereafter, boundary
stones have been laid and a compound has also been put up.
11. As per the orders of the Court, an Advocate Commissioner has already been
appointed, who has inspected the disputed property and submitted his report along with
the sketch. Ex.C-1 is the Commissioner’s Report dated 27.03.2001 and Ex.C-2 is the Sketch
in S.No.20/9. The Advocate Commissioner in his report has stated that the suit property in
S.No.20/9 is located in Puttur Village. The learned Trial Judge has extracted the relevant
portion of the Advocate Commissioner’s report as follows:
“Ex.R-15, revenue records were filed to show that an extent of 11 cents in the suit
S.No.20/9 belongs to the school building. Document was also filed to show that
they are in possession and enjoyment of 11 cents. In this case, from the report of
the Advocate Commissioner, it is seen that the suit land is in Survey No.20/9 in
Puttur Village; that the suit land is situated on the south and east to 50 cents of
plaintiff’s land west to tank, north to the school and Velankanni Ammal’s house;
that Sivan Koil north street runs east-west; that the school building is situated on
the north of this street; that abutting this, on the western side, the plaintiff’s house
is situated; that the school building is in two segments; that there is an inscription
on the stone that the first segment of the school building was built in the year 1994-
95; that there is a pathway of 6 ft. on the eastern side to go to the backside;
that through that pathway if one goes to a distance of 10 feet, there lies the
second segment; and it was inscribed on the stone that the said segment was built
in the year 1972; that the school building was divided into two parts and in one part
there lies a godown for Nutritious Meal Centre; that on the Southern side there is
door with a lock and in the backside, there is one window; that the next part
comprises a class room; that on the southern side wall, two doors and one window
were removed in order to fix a door to enable to go inside and the stones and
window were removed; that portion was fenced with thorn and coconut leaves to
prevent the entry; that through the house of the plaintiff which is on the western
side of the school building alone, one can reach the northern wall of the school
building or to reach the backside; that there is no other way; that on the western
wall of the school building, there lies the plaintiff’s cattle shed and the house of the
plaintiff’s son; that the house of the plaintiff is situated with the garden and there
are many coconut trees and banana trees and plants;”
12. Oral and documentary evidence has been let in by both parties to prove their
respective possession of the land in dispute. There is also evidence of the learned Advocate
Commissioner, who in his report, Ex.C-1 has explained in detail about the location of the
school building, giving the boundaries and explained the extent of land in possession of the
plaintiff. It is evident from Ex.P-14, about 4 ¾ cents of land said to have been encroached
upon by the plaintiff on the northern side. In such circumstances, there are materials
available before the Appellate Court and it has got jurisdiction to prove the factual aspects
and give a finding as to whether the plaintiff is entitled to an injunction in respect of the
remaining portion of the land in question, namely, 4 ¾ cents in S.No.20/9. The decisions
cited above do not restrain the Appellate Court to take further evidence or to appoint an
Advocate Commissioner, if necessary and try the appeal, if there is any doubt regarding
the extent of lands in possession of the contesting parties.
13. Order XLI, Rule 23 contemplates remand only under the following circumstances:
 (i) The Trial Court disposed of the case otherwise than on a preliminary point and
(ii) The decree is reversed in appeal and a retrial is considered necessary.
In cases where additional evidence is required to be taken, in the event of any one of
the clause of sub-rule (1) of Rule 27 being attracted, such additional evidence, oral or
documentary is allowed to be produced either before the appellate Court itself or by directing
any Court subordinate to the appellate Court to receive such evidence and send it to the
Appellate Court. The Courts have further held that only in exceptional cases, the power
of remand can be exercised if the superior Court finds that the judgment under the appeal has
not been decided satisfactorily in the manner required by Order XX, Rule 23 or Order XI,
Rule 31, C.P.C. and therefore, it is no judgment in the eye of law, and only under such
eventuality, the appellate Court may set aside the same and remit the matter back for fresh
trial, so as to protect the valuable rights of the parties. An appellate Court should be
circumspect in ordering a remand when the case is not covered either by Rule 23 or Rule 23-
A or Rule 25 of the Civil Procedure Code. An unwarranted order of remand gives the
litigation an undeserved lease of life and, therefore, it should be avoided.
14. The lower Court has considered the oral and documentary evidence let in by both
parties and also the Advocate Commissioner’s report. On the basis of the available materials,
the Appellate Court itself can go into the factual aspects and give a specific finding as to
whether the plaintiff is in possession of the remaining extent of 4 ¾ cents of land.
In a case of injunction, where a specific finding is given in respect of possession of a
property and where a partial decree is given, the dismissal of the suit in the absence of an
appeal filed by the defendant is erroneous. It is settled law that in a matter of
injunction, the Appellate Court would not interfere with the finding, unless the Lower Court
has acted unreasonably or ignored certain facts placed before the Court.
15. There is no quarrel over the decision reported in K. Muthuswami Gounder v.
N.Palaniappa Gounder reported in AIR 1998 SC 3118. However, the power of the Court
under Order XLI, Rule 33 is well accepted in the later decision in Banarsi and others v.
Ramphal reported in AIR 2003 SC 1989, where the power can be exercised only subject to
three limitations, namely,
(i) The power cannot be exercised to the prejudice or disadvantage of a person not a
party before the Court;
(ii) A claim given up or lost cannot be revived;
(iii) Such part of the decree which essentially ought to have been appealed against or
objected to by a party and which that party permitted to achieve a finality cannot
be reversed to the advantage of such party.
16. In the instant case, it is a pure finding of fact regarding the extent of possession.
The defendants who have suffered a decree and who have been injuncted from interfering
with the possession of the land have not filed any appeal and that they allowed the decree
regarding the possession of 45 ¼ cents of land to reach its finality. The finding of the lower
Court in respect of one portion of land is not so inseparably connected with the remaining
portion. The finding of the lower Court cannot be termed as inconsistent or contradictory or
unworkable also. Only in a case, where the decree is interlinked and inseparable, then the
decision rendered in the lower Court can be interfered with, in the absence of an appeal.
17. In the present case, the Appellate Court has to exercise all the powers under Order
XLI, Rule 23 to do complete justice between the parties and it is purely discretionary.
Inasmuch as adequate materials are available on record, the Appellate Court itself could have
disposed of the appeal on merits without setting aside the entire judgment and decree of
the trial Court.
The lower Appellate Court has also exceeded in its jurisdiction in ordering joint trial of
the suits, in the absence of a specific power conferred on it under Section 24, C.P.C.

In view of the above discussion and the settled position of law, the judgment and
decree passed in A.S.No.53 of 2004, setting aside the entire decree of the lower Court is
without jurisdiction, and the same is set aside. The Appellate Court is directed to dispose of
the appeal in the light of the above discussion and on the basis of the pleadings and evidence
available on record in respect of the remaining 4 ¾ cents of land in S.No.20/9, which is
the subject- matter of dispute in the appeal.
The civil miscellaneous appeal is disposed off accordingly. No costs. Consequently,
connected V.C.M.P.No.124 of 2006 is closed.
Appeal disposed off.

[2007 (2) TNCJ 516 (Mad)]

MADRAS HIGH COURT
BEFORE:
S. ASHOK KUMAR, J.
J. SHANKER ...Petitioner
Versus
P. JAYABAL ...Respondent
[C.R.P.(PD) No. 1127 of 2006 and M.P. No. 1 of 2006, decided on 6 March, 2007]
th

(A) Practice and procedure—Court-fee—Payability of—To be decided on the

very pleadings of the plaint and not even on the reliefs prayed for in the suit.
(Para 6)
(B) Court-Fees Act, 1870—Court-fee—Determination of—Plaintiff ignores the
partition deed dated 19-1-2001—Wants to reopen the partition deed by effecting a
fresh partition—It would affect the suit for cancellation of the earlier partition deed in
which the plaintiff was also a party to the same—Plaintiff will have to pay court-fee for
cancellation of the earlier partition deed also.
(Para 6)
(C) Review jurisdiction—An error apparent on the face of the record only can be
corrected by exercise of review jurisdiction—Not an erroneous decision.
(Para 8)
(D) Court-Fees Act, 1870—Section 40—Attractability of—When a party to the
document challenges the same on the ground that it is forged, then the suit property has
to be valued at the market rate—And court-fee should be paid accordingly—Prayer
could be couched in the form of seeking declaration that the document is not valid
and not binding—Relief in substance indirectly amounts to seeks for cancellation—
Section applicable is only Section 40 of the Act.
(Para 7)
 (E) Civil Procedure Code, 1908—Order XLVII, Rule 1— Review—Power of—
Can be exercised for correction of a mistake and not to substitute a view—Error must
be such which is apparent on the face of the record and not an error which is to be
fished out and searched—It must be an error of inadvertence.
(Para 13)
(F) Review application—Maintainable not only upon discovery of a new
and important piece of evidence or when there exists an error apparent on the face of
the record but also if the same is necessitated on account of same mistake or for any
other sufficient reason which would include a misconception of fact or law by a Court
or even an Advocate. (Para 16)
Case law.—AIR 2000 SC 1650; 1998 (1) CTC 25; 2007 (1) MLJ 696; 2006 (3) MLJ
196; AIR 2006 SC 75; 2005 (4) SCC 741; 2005 (4) CTC 197; 1998 (2) LW 152—relied on.
Counsel.—Mr. N. Manokaran, for the petitioner; Mr. M.M. Sundaresh, for the
respondent.
JUDGMENT
S. ASHOK KUMAR, J.—Aggrieved over the order passed in I.A.No.59 of 2006 filed
by the review petitioner/plaintiff, reversing the order directing the plaintiff to value the suit
under Section 37(2) of the Tamil Nadu Court-Fees Act and not under section of the Court-
Fees Act as directed earlier in the earlier Interlocutory Application No.605 of 2005, this
revision has been filed by the 1st defendant.
2. The plaintiff/respondent has filed the suit for declaration of title of A Schedule
property and for consequential injunction as against the defendant and for reopening the
partition deed dated 19.1.2001 by effecting a fresh partition of B Schedule property by
dividing into 4 equal shares and for allotting one such share to the plaintiff. As such, he
valued the suit A Schedule under Section 25(b) of the Court-Fees Act and for half of the
market value paid a court-fee of Rs.958/-. Since the plaintiff wanted to ignore the partition
dated 19.1.2001 as it was obtained by coercion, undue influence and fraud he did not seek for
cancellation of the said partition deed and paid a court-fee under Section 37(2) of the Act as
far as B Schedule of property is concerned.
3. Challenging the same, the defendant filed I.A.No:605 of 2005 stating that the court-
fee has to be paid under Section 40 of the Act. The trial Court accepting the contention of the
defendant and following the judgment of this Court reported in 2005 (4) CTC 197,
directed the plaintiff to value the suit property under Section 40 of the Court-Fees Act.
4. Aggrieved over the same, the plaintiff filed review petition in I.A.No:59 of 2006
contending that the decision relied on by the trial Court is applicable only to the suits field
for cancellation of the sale deeds and would not apply with regard to a suit for partition and
the suit ought to have been valued only according to the pleadings of the plaintiff and not
according to the written statement filed by the defendant. The trial Court accepting the
contentions of the plaintiff reversed its earlier order and held that the suit has to be valued
only under Section 37(2) of the Court-Fees Act. Against the same, the present revision is
filed by the defendant.
5. Mr.N.Manokaran, learned counsel for the revision petitioner/defendant contended
that the trial Court’s power of review can be exercised only for correction of a mistake and
not to substitute a view and the review cannot be treated as an appeal in disguise. Further,
the power of review is not an inherent power. In exercise of the jurisdiction under Section
114, CPC, it is not permissible for a decision to be reheard and corrected as held by the Apex
Court in AIR 2000 SC 1650 and in 1998 (1) CTC 25.
6. It is well settled law that the court-fee payable on the plaint is to be decided on the
very pleadings of the plaint and not even on the reliefs prayed for in the suit. In the present
case a perusal of the plaint would show that the plaintiff is virtually seeking to set aside the
earlier partition as not valid and not binding upon him and therefore the relief in substance
indirectly amounts to seeking for the cancellation of the earlier partition. Further, as regards
A Schedule of property, there is no dispute between the parties with regard to payment of
court-fees. The only dispute is with regard to B Schedule of property. Since the plaintiff
ignores the partition deed dated 19.1.2001, and he wants to reopen the partition deed by
effecting a fresh partition it would affect the suit for cancellation of the earlier partition deed
in which the plaintiff was also a party to the same. As such as far as B Schedule of property
is concerned, the plaintiff will have to pay court-fee for cancellation of the earlier partition
deed also.
7. This Court in 2007 (I) MLJ 696 (S.Rajasekaran v. K. Sargunam) again reiterated
that when a party to the document challenges the same on the ground that it is forged, then
the suit property has to be valued at the market rate and court-fee should be paid accordingly.
This decision is squarely applicable to the facts of this case also. The decision in 2005 (5)
CTC 190 (Chellakannu v. Kolanji) is also to the effect that though a prayer could be couched
in the form of seeking declaration that the document is not valid and not binding, the relief in
substance indirectly amounts to seeks for cancellation and therefore the section applicable is
only Section 40 of the Act. Hence, it is clear that the whether it is cancellation of sale deeds
or cancellation of partition deed, it makes no difference and that too when the plaintiff is
party to such instrument and when the pleadings would establish the intention of the plaintiff
to cancel such instrument, only Section 40 of the Tamil Nadu Court-Fee Act is attracted.
8. As regards the power of review by the Court, learned counsel relied on a Division
Bench decision of this Court in L. Jegannath and others v. Land Acquisition officer and
RDO, Palani and others reported in 2006 (3) MLJ 196 while reiterating the very words of
the Apex Court rendered in 1998 (1) C.T.C. 25 (Parison Devi v. Sumitra Devi) it has been
held that “There is a clear distinction between an erroneous decision and an error apparent on
the face of the record. While the first can be corrected by the higher forum, the latter only
can be corrected by exercise of the review jurisdiction.”
9. In Rajender Singh v. Lt. Governor, Andaman and Nicobar Islands, reported in
A.I.R. 2006 S.C.75, in Paragraphs 15 and 16, it has been held as follows:
“15. We are unable to countenance the argument advanced by learned Additional
Solicitor General appearing for the respondents. A careful perusal of the impugned
judgment does not deal with decide many important issues as could be seen from
the grounds of review and as raised in the grounds of special leave petition/appeal.
The High Court, in our opinion, is not justified in ignoring the materials on record
which on proper consideration may justify the claim of the appellant. Learned
counsel for the appellant has also explained to this Court as to why the appellant
could not place before the Division Bench some of these documents which were
not in possession of the appellant at the time of hearing of the case. The High
Court, in our opinion, is not correct in overlooking the documents relied on by the
appellant and the respondents. In our opinion, review jurisdiction is available in
the present case since the impugned judgment is a clear case of an error
apparent on the face of the record and non-consideration of relevant documents.
 The appellant, in our opinion, has got a strong case in their favour and if the claim
of the appellant in this appeal is not countenanced, the appellant will suffer
immeasurable loss and injury. Law is well-settled that the power of judicial review
of its own order by the High Court inheres in every Court of plenary jurisdiction to
prevent miscarriage of justice.
16. The power, in our opinion, extends to correct all errors to prevent miscarriage
of justice. The Courts should not hesitate to review its own earlier order when
there exists an error on the face of the record and the interest of the justice so
demands in appropriate cases. The grievance of the appellant is that though several
vital issues were raised and documents placed, the High Court has not considered
the same in its review jurisdiction. In our opinion, the High Court’s order in the
revision petition is not correct which really necessitates our interference”.
10. In Lilly Thomas v. Union of India, reported in A.I.R. 2000 S.C. 1650, in Paragraph
52, it is observed as follows:
“52. The dictionary meaning of the word “review” is “the act of looking, offer
something again with a view to correction or improvement. It cannot be denied
that the review is the creation of a statute. This Court in Patel Narshi Thakershi v.
Pradyumansinghji Arjunsinghji, A.I.R.1970 S.C. 1273 held that the power of
review is not an inherent power. It must be conferred by law either specifically or
by necessary implication. The review is also not an appeal in disguise.”
In Paragraph 55, it is observed as follows:
“That the power of review can be exercised for correction of a mistake and not to
substitute a view. Such powers can be exercised within the limits of the statute
dealing with the exercise of power. The review cannot be treated an appeal in
disguise. The mere possibility of two views on the subject is not a ground for
review”.
11. In Parison Devi v. Sumita Devi, reported in 1998(1) C.T.C. 25, Paragraph 9 of the
judgment reads as follows:
“Under Order XLVII, Rule 1, C.P.C. a judgment may be open to review inter alia
if there is a mistake or an error apparent on the face of the record. An error
which is not self evident and has to be detected by a process of reasoning, can
hardly be said to be an error apparent on the face of the record justifying the Court
to exercise its power of review under Order XLVII, Rule 1, C.P.C. In exercise
of the jurisdiction under Order XLVII, Rule 1, C.P.C., it is not permissible for an
erroneous decision to be “reheard and corrected”. A review petition, it must be
remembered, has a limited purpose and cannot be allowed to be “an appeal in
disguise”.
12. In Lily Thomas v. Union of India, AIR 2000 SC 1650, the Honourable Supreme
Court has held that Review is also not an appeal in disguise and review cannot be treated as
an appeal in disguise. It has been further held that the power of review can be exercised for
correction of a mistake and not to substitute a view and mere possibilities of two views on the
subject is not a ground for review. In Paragraph 57 of the said judgment, it has been
observed and held as follows:
“It is not the case of the petitioners that they have discovered any new and
important matter which after the exercise of due diligence was not within their
knowledge or could not be brought to the notice of the Court at the time of passing
 of the judgment. All pleas raised before us were in fact addressed for and on
behalf of the petitioners before the Bench which, after considering those pleas,
passed the judgment in Sarla Mudgal’s case. We have also not found any
mistake or error apparent on the face of the record requiring a review. Error
contemplated under the rule must be such which is apparent on the face of the
record and not an error which is to be fished out and searched. It must be an error
of inadvertence. No such error has been pointed out by the learned counsel
appearing for the parties seeking review of the judgment.”
13. If we consider the case on hand, in the light of the above, we can see that in this
case also it is not the case of the review applicants that they have discovered any new
and important point which after the exercise of due diligence was not within their
knowledge or could not be brought to the notice of the Court at the time of passing of the
orders in the impleading petitions. As pointed out by the Honourable Supreme Court of
India, error contemplated under Order XLVII, Rule 1 must be such which is apparent on the
face of the record and not an error which is to be fished out and searched. It must be an error
of inadvertence.
14. An error which is not self-evident and has to be detected by process of reasoning
can hardly be said to be an error apparent on the face of the record, justifying the Court to
exercise the power of review under Order XLII, Rule 1 of C.P.C. In my considered view, in
exercise of jurisdiction under Order XLII, Rule 1, C.P.C, it is not permissible for an
erroneous decision to be reheard and corrected. In this case, there is no error of inadvertence.
No such error has been pointed out for seeking review. All the pleas raised in this review
petition were in fact raised before the same trial Court at the time of hearing of I.A.No: 605
of 2005 itself and therefore the trial Court ought not to have entertained the review petition. It
is not the case of the plaintiff that he has discovered any new and important matter which
after the exercise of due diligence was not within his knowledge or could not be
brought to the notice of the Court at the time of passing the order in the earlier I.A.No. 605 of
2005. The only ground that the decision of the Apex Court has to be given more weightage
than the decision of the High Court, on which, the trial Court reversed its earlier order cannot
be sustained for the reasons and legal proposition culled out above.
15. In the decision of the Apex Court in BCCI v. Netaji Cricket Club, (2005) 4 SCC
741, relied on by Mr. M.M. Sundaresh, learned counsel for the respondent/plaintiff with
regard to power of review, Their Lordships of the Apex Court held as follows:-
“Section 114 empowers a Court to review its order if the conditions precedent laid
down therein are satisfied. The substantive provision of law does not prescribe any
limitation on the power of the Court except those which are expressly provided in
Section 114, CPC in terms whereof it is empowered to make such order as it thinks
fit. Further, Order XLVII, Rule 1, CPC provides for filing an application for
review. Such an application for review would be maintainable not only upon
discovery of a new and important piece of evidence or when there exists an
error apparent on the face of the record but also if the same is necessitated on
account of some mistake or for any other sufficient reason. What would constitute
sufficient reason would depend on the facts and circumstances of the case. The
words “sufficient reason” in Order XLVII, Rule 1, CPC are wide enough to include
a misconception of fact or law by a court or even an advocate. An application for
review may be necessitated by way of invoking the doctrine “actus curiae
neminem gravabit”.
 16. In the above decision also their Lordships of the Apex Court have only held that
an application for review would be maintainable not only upon discovery of a new and
important piece of evidence or when there exists an error apparent on the face of the record
but also if the same is necessitated on account of some mistake or for any other sufficient
reason which would include a misconception of fact or law by a court or even an advocate.
Here, such is not not the case and therefore, the case on hand is clearly distinguishable.
17. As regards payment of court-fee also, the decision relied upon by Mr. M.M.
Sundaresh, learned counsel for the respondent in 2005 (4) CTC 197 (Chellakannu v. Kolanji)
is not supporting his contention, rather it is against his case. In the said decision,
R.Banumanithi, J., though held that in a partition suit allegation made in the plaint alone
would be considered and the pleadings made in the written statement cannot be considered
for such determination, however held that such pleas cannot be extended to suits where the
plaint is astutely drafted and prayer is couched. Therefore, suit for cancellation of document
would come under purview of Section 40 of the Tamil Nadu Court Fees and Suits Valuation
Act. The decision reported in 1998(2) LW 152 (Ramachandran v. Munisamy and 6
others), relied on by the learned counsel is also not applicable since astuteness is employed
by the plaintiff to evade payment of proper court-fee.
18. For the reasons stated above, the revision petition is allowed. Consequently,
connected MP is closed. No costs.
Petition allowed.

[2007 (2) TNCJ 524 (Mad)]

MADRAS HIGH COURT
BEFORE:
S. ASHOK KUMAR, J.
MUMMALAPEDU RATHINAVELU CHETTIAR AND
ETHIRAJAMMAL TRUT REP. BY ITS TRUSTEE ...Petitioner
Versus
R. BALARAMAN ...Respondent
[C.R.P. (PD) No. 1148 of 2006 and M.P. Nos. 1 and 2 of 2006, decided on 13 th March,
2007]
(A) Civil Procedure Code, 1908—Section 115—Scope of— Additional evidence,
sought to be introduced at this stage—Permissibility of—Opportunity to produce the
trust deed of the year 1909 exists, yet not filed before the lower Courts—And has chosen
to file only in the revisional stage which is not permissible considering the facts and
circumstances of the case—Application to receive additional document dismissed.
(Paras 13 to 16)
(B) Tamil Nadu City Tenants Protection Act, 1921—Section 9—Benefit of—
Availability of—Concurrent finding—No interference warranted.
(Paras 11, 12 and 16)
Case law.—Vol. 72 LW 129; AIR 1970 SC 1; AIR 1992 SC 700; 1996 (II) LW 752;
1999 (3) SCC 115; 2006 (4) MLJ (SC).
Counsel.—Mr. Parthasarathy S.C., for Mr. G. Kathirvelu, for the petitioner; Mr T.R.
Mani, S.C., for Mr. A. Venkatesan, for the respondent.
 JUDGMENT
S. ASHOK KUMAR, J.—This civil revision petition is filed by the plaintiff in the suit
against the order dated 14.10.2005, made in C.M.A.No. 116 of 2004 passed by the learned
Judge, Fast Track Court No.V, Chennai, confirming the order passed in I.A.No.11816 of
1997 in O.S.No. 14832 of 1996 passed by the Ist Assistant Judge, City Civil Court,
Chennai.
2. The brief facts of the case are as follows:—
The petitioner-landlord filed the suit praying for the reliefs if (a) to vacate and deliver
vacant possession of the suit premises; (b) for recovery of arrears of rent and (c) for damages
and for other consequential reliefs. In the said suit the respondent/defendant filed
I.A.No.11816 of 1997 under Section 9 of the Tamil Nadu City Tenants Protection Act
contending that he is the tenant of the land alone and the owner of the superstructure and that
he is not the tenant of land and superstructure as contended by the plaintiff. The trial Court
accepting the contention of the defendant allowed the said application by order dated
24.6.2004. Against the said order, the plaintiff filed CMA.No.116 of 2004 before the Fast
Track Court and the learned Judge dismissed the appeal. Aggrieved of the same, the present
CRP is filed. Pending the CRP, Miscellaneous Petition No. 2 of 2006 is filed by the
petitioner/plaintiff to receive the registered Trust Deed dated 20.12.1909 which reveals the
character of the property as “Public, Religious and Charitable Trust” and that therefore
the provision of Tamil Nadu City Tenants Protection Act as amended by the Act 2 of 1996 ,
would not apply and the learned trial Judge had no jurisdiction to hold that the respondent/
defendant was entitled to the benefits of the said Act.
3. Since the decision to be rendered in the miscellaneous petition as to the
admissibility of the additional evidence in this revision by which the plaintiff sought to
claim that the character of the property is a public, religious and charitable trust, the result in
the miscellaneous petition will have the bearing on the outcome of the main CRP.
4. Learned senior counsel appearing for the respondent however raised strong
objections to receive the document as additional evidence as the same is not sustainable
both in law and also of facts. According to the learned counsel the revisional jurisdiction is
equivalent to appellate jurisdiction and the provisions of Order XLVII, Rule 27 is clear and
unambiguous and the petitioner has not made out any case for reception of additional
evidence. According to the learned senior counsel, the document sought to be adduced as
additional evidence is only a device to tie up the property in the family. Further, the
circumstances which clinchingly proved that from 1909 till 1989 no document was filed to
prove the existence of public trust, or performance of public religious charities, on the
contrary all the documents that were filed by the petitioner only shows that the individual
members of the family were treating the property as their own, rent receipts were being
issued in individual names and not in the name of the Trust etc.
5. The learned senior counsel for the revision petitioner contended that in the
counter filed by the respondent the genuineness of the trust deed is not disputed, instead only
hyper-technical objection is raised that a new document cannot be received in revisional
jurisdiction. But the revisional jurisdiction is not an appellate jurisdiction and that too
when the document sought to be marked as additional evidence goes to the root of the matter.
The suit is filed to recover possession of the land and building against the respondent and the
suit would not have been entertained by the Civil Court if the plaintiff was not a public
religious charity. Further, this Court being the guardian of the public trusts is exercising a
“parent patriae” jurisdiction and as there is an element of public trust involved, the
hyper-technical objection of the respondent cannot stand in the face of the inherent
jurisdiction vested under Section 151, CPC read with Order XLI, Rule 27, CPC apart from
the supervisory jurisdiction vested in this Court under Article 227 of the Constitution of
India.
6. The learned counsel for the revision petitioner relied on the judgments of this Court
reported in Vol.72 L.W.129 and AIR 1970 SC 1 to hold that the jurisdiction of this Court
under Section 115 is an appellate jurisdiction which is wider and larger. He also relied upon
the judgments reported in AIR 1992 SC 700; 1996 (II) LW. 752 and 1999 (3) SCC 115 in
support of his claim that additional evidence can be entertained in revision.
7. Learned counsel for the revision petitioner further contended that apart from the
decision to be rendered in M.P.No. 2 of 2006 even if the CRP is considered on merits, the
impugned order of the Court below is contrary to law. According to the learned counsel for
the revision petitioner, the burden of proving that the respondent is only a tenant of land
alone is on the respondent and will never shift to the petitioner. When the respondent claims
that his father had taken the land on lease and constructed the superstructure, then it is for
him to prove the same. The oral evidence of respondent as P.W.1 and another neighbour as
P.W.2 and the documentary evidence Exs.P-1 to P-3 would show that the superstructure was
constructed long before the respondent was born and that he does not personally aware of
the construction. So also P.W.2 would state that I do not have any personal knowledge of title
to the property. In Ex.P-5 series, the rental receipts produced by the respondent, the recital is
that it is for premises No.35, Venkatesa Naicken Street, Royapuram, Chennai. If it is land
rent, then it would have been mentioned as land rent. Further, the correspondence between
the erstwhile trustee of M.K. Shanmugasundaram and late Ramasamy, father of the
respondent, would show that it is specifically mentioned that the premises is rented for and
the same is not disputed. The Courts below have erroneously presumed that there must have
been a lease deed when the same has not been produced at all and the burden is on the tenant
who claims benefit under Section 9 of the Act.
8. On the limitation aspect, the learned counsel for the revision petitioner contended
that the respondent was served with a copy of the plaint, affidavit and petition as per Ex.R-6,
dated 27.11.2006. If Rule 6 is taken as service of summons, then the application should have
been filed by 29.12.2006, whereas the application was filed only on 10.1.1997 with a delay of
12 days, for which there was no application to excuse the delay under Section 5 of the
Limitation Act. It is also contended by him that there is no indication in the Court records as
to when the suit summons was served and it is the duty of the Court to find out when
summons was issued and served and not for the petitioner to establish. According to the
learned senior counsel, the limitation starts when the defendant is put on notice regarding the
suit by service of plaint copy.
9. A perusal of the plaint would show that the allegations in the plaint are that the
petitioner-trust is the owner of both land and building, that the respondent/tenant is the
tenant of both land and building on a monthly rent of Rs.500/- that the respondent/tenant has
wilfully failed and neglected to pay the rent from 1.10.1991, that the tenancy has been
terminated by notice dated 10.4.1996 and that, therefore, the petitioner/plaintiff trust is
entitled to the relief of ejectment of the respondent/tenant from the suit property, that it is
also entitled to past arrears of rent from 1.10.1991 to 31.5.1996 in a sum of Rs.28,000/- at
Rs.500/- p.m., that it is further entitled to past damages for use and occupation from 1.6.1996
to 20.6.1996 and future damages from 21.6.1996 till date of delivery of possession.
 10. It is also curious to point out that before filing the suit, the petitioner/plaintiff filed
petition in RCOP.No. 2700 of 1993 for eviction of the respondent/tenant on the ground of
wilful default and admittedly the said RCOP was dismissed on the ground that the trust has
not filed the revision but the same has been filed by an individual. There was no appeal
against the said order in the RCOP, but after the dismissal of the RCOP, the petitioner
purported to terminate the tenancy of the respondent by notice dated 1.4.1996 and file the
present suit.
11. It is also seen from the proceedings that the defence of the respondent/tenant
throughout, right from the time of exchange of notices, during the course of RCOP and in the
course of the ejectment suit is that the trust is the owner of only the land and not the
superstructure, that the lease in favour of the respondent’s father originally was more than
30 years ago and not land and building, the respondent continued to be a tenant of the land
subsequent to his father’s death and on this basis the tenant filed I.A.No.11816 of 1997 under
Section 9 of the Madras City Tenants Protection Act, 1921 for purchase of the land over
which his father has built the superstructure.
12. Both the trial Court and the first appellate Court on a detailed consideration of
the elaborate documentary and oral evidence concurrently found that the lease in favour
of the tenant is only lease of site and not of both land and building and that therefore
the tenant is entitled to purchase the land upon which his father had constructed the building.
The attempt by the petitioner to seek to file an additional document as alleged trust deed
dated 18.12.1909 and contend that the trust owns the suit property of which the respondent
is a tenant is a public trust and that the property of a public trust is exempted from the
purview of the Madras City Tenants Protection Act and that therefore the tenant is not
entitled to invoke Section 9 of the said Act and purchase the land is taken for the first time
before this Court. Even assuming without admitting that the petitioner is a public trust, the
trust never came not being and was never intended to be acted upon and the alleged trust
deed dated 18.12.1909 is only a devise to tie the property in the family and not executed with
an intention to carry out charitable and religious objects or with the object of benefitting the
public. Further, there is no evidence let in by the petitioner regarding the charitable and
religious objects having been performed all along.
13. In the RCOP, when it was filed it was not stated that the property was a trust
property, much less a property belonging to a public trust. Even the petitioner in the RCOP in
his chief examination deposed that it is a private trust. If the property belong to a public rust,
the eviction petition itself would not have been field by the public trust. In such event the
property would have been exempted under the Tamil Nadu Buildings (Lease and Rent
Control) Act, 1960 as per Section 29 of the said Act, read with G.O.Ms.No.2000, Home,
dated 16.8.1976. After the RCOP was dismissed as it has not been filed by the trust, the
petitioner issued a notice to terminate the tenancy of the respondent. Admittedly, the plaint
does not say either in the cause title or in the body of the plaint anywhere that it is a public
trust. Even in the counter filed by the petitioner to I.A.No.11816 of 1997, the petitioner does
not say that it is a public trust and that therefore the provisions of Section 9 of the City
Tenants Protection Act does not apply.
14. Under Section 115, CPC this Court has to call for the records of any case as has
been decided by any subordinate Court for the purpose of finding out, whether the
subordinate Court has exercised a jurisdiction not vested in it by law or has failed to exercise
jurisdiction so vested in it or has acted in exercise of jurisdiction illegally or with material
irregularity. The above aspects have to be seen only from the record submitted in the lower
Court and not on the foot of a record which is sought to be submitted for the first time before
this Court in the revisional stage. The respondent was not called upon to meet a case based
upon an alleged public trust. Therefore, the petitioner is also estopped in law from
putting forward a new case for the first time before this Court in revision that the property
belongs to a public trust and that, therefore, the City Tenants Protection Act does not
apply.
15. In 2006 (4) MLJ (SC), the Hon’ble Supreme Court while allowing the appeal
setting aside the order of the High Court which remitted the matter with liberty to produce
documents in order to fill lacuna in the evidence, held that when the plaintiffs were given
sufficient opportunity to produce the documents, the High Court should not have remanded
the matter. Therefore, this would make it clear that in the present case as well, the petitioner
even though had the opportunity to produce the trust deed of the year 1909, yet had not filed
the same before the lower Courts and has chosen to file only in the revisional stage which is
not permissible considering the facts and circumstances of this case.
16. For the reasons stated above, the CRP and the connected MP.No.2 to receive
additional document are dismissed. Consequently, connected MP.No.1 is also dismissed. No
costs.
Petition dismissed.

[2007 (2) TNCJ 530 (Mad)]

MADRAS HIGH COURT
BEFORE:
S. PALANIVELU, J.
NEW INDIA ASSURANCE COMPANY LTD., CHENNAI ...Appellant
Versus
L. SUNDERARAJAN AND ANOTHER ...Respondents
[C.M.A. No. 680 of 2002, decided on 18 July, 2007]
th

Motor Vehicles Act, 1988—Section 173—Award—Compensation of Rs. 30,300/-

for injuries sustained in the accident—Appeal against—Accident took place at 8.15 a.m.
on 17-10-1997—Vehicle was insured at 10.30 a.m. on 17-10-1997 to midnight of 16-10-
1998—No insurance coverage for the relevant time of accident—Insurance Company
would not in any event be fastened with liability of paying compensation to the
claimant—Owner committed deliberate concealment of the fact of accident—Non-
disclosure rendered the policy void ab initio—Award modified—Owner directed to pay
the compensation of Rs. 30,300/- with costs of the appeal—Owner also directed to pay
Rs. 25,000/- to the Insurance Company as exemplary cost.
(Paras 8 to 13)
Case law.—2005 A.C.J. 1103.
Counsel.—Mr. R. Vedantham, for the appellant; No appearance, for the respondents.
JUDGMENT
S. PALANIVELU, J.—Insurance Company has filed this appeal, aggrieved over the
award, made in MACT O.P.No.2219 of 1998, on the file of Motor Accident Claims Tribunal
(IV Judge, Court of Small Causes), Chennai, awarding a sum of Rs.30,300/-, for the injuries
sustained by first respondent.
 2. When this matter came up for hearing on two occasions, there was no representation
for the respondents. Hence, the matter was directed to be posted today for orders.
3. Claimant, first respondent herein, lodged a complaint with regard to the accident.
He had stated therein that on 17.10.1997 at about 08.15 a.m., while he was going on a Sunny
scooter, bearing registration No.TN 09 X 7209 with his daughter-in-law as a pillion rider
along M.M.D.A.Colony in Arumbakkam, a van, bearing registration No.TSL 3507,
driven by its driver in a rash and negligent manner, came from behind and dashed
against the said two wheeler, causing injuries to the duo.
4. As far as the negligence on the part of the driver is concerned, it has been
established before the Tribunal by a circumstance that he admitted the offence before a
criminal Court and paid a fine of Rs.750/-.
5. The award receives a scathing attack from the side of the appellant, contending that
at the time of accident, the van, belonging to second respondent, was not at all under
insurance coverage with the appellant.
6. The accident took place at 08.15 a.m. on 17.10.1997. It is worthwhile to note that
after a span of just about 2 hours i.e., at 10.30 a.m. on the same day, the vehicle was insured
with the appellant by second respondent, to wriggle out from the responsibility of paying
compensation to the claimants.
7. Ex.R-1, insurance policy, was produced by the appellant insurance company before
the Tribunal and it is a sorry state of affair to note that the Tribunal had not even referred
to the presence of Ex.R-1 in case records. It woefully failed to appreciate the
documentary piece of evidence, very much available in case bundle. The said document
Ex.R-1 was marked and proved through R.W.1, who was Assistant Manager in the appellant
company. When Ex. R-1 was produced before the Court, it was incumbent upon the
second respondent/owner of the vehicle to put forth his contention with regard to the aspect
that at the time of accident i.e., at 08.15 a.m. on 17.10.1997, his vehicle was under insurance.
But, he ignored both the forums viz., the Tribunal and this Court conveniently,
attempting to shift the responsibility on the appellant.
8. It is not out of place to mention here that in Ex.R-1, it is stated that policy is
effective from 10.30 a.m. on 17.10.1997 to midnight of 16.10.1998.
9. While referring to the above said feature, learned counsel for the appellant draws
attention of this Court to a Division Bench decision of this Court in National Insurance
Co.Ltd. v. N.Ponnaiyan and others, 2005 ACJ 1103, wherein, it is held as follows :
“6. We have already referred to the fact that in Exh.R-2, insurance policy, it is
specifically mentioned that the policy shall come into effect on 12.7.1991 from
7.15 p.m. onwards. In such a circumstance, in the light of the specific reference to
the time, as interpreted by the Supreme Court in the above referred decision, we
hold that as per the insurance policy Exh.R-2, the coverage would be operative
from that time i.e., 7.15 p.m. and not from the previous midnight as observed
and stated in earlier decisions. Accordingly, insurance company cannot be
mulcted with liability as ordered by the Deputy Commissioner. Consequently,
the contrary conclusion arrived at by him directing the insurance company to
deposit the compensation is liable to be set aside.”
10. From the above said decision, it is crystal clear that when there is no insurance
coverage for the relevant time of accident, the insurance company would not, in any event, be
fastened with liability of paying compensation to the claimant. The attitude of the
Tribunal, in this regard, is highly deprecated.
11. At the time of making a proposal for insurance, owner of the vehicle knew full well
that the accident already took place and deliberately concealed the factum of accident. As
such, the non- disclosure of material fact has rendered the policy void ab initio. The
insurance company is not liable to indemnify the vehicle owner in the case of suppressing the
material fact, while taking the policy. The vehicle owner, after receiving information about
the accident, in order to escape from the responsibility of making good the loss to the
claimant, immediately rushed to the insurance company and took a policy. While resorting to
this nature of attitude by a vehicle owner, the Court has to come down heavily.
12. Therefore, award passed by the Tribunal is modified to the effect that the
compensation of Rs.30,300/-, fixed by the Tribunal, is directed to be paid by the owner of the
vehicle/second respondent with costs. In addition to costs of this appeal, second respondent is
also directed to pay exemplary costs of Rs.25,000/- to the appellant, within a period of eight
weeks from the date of receipt of a copy of this order.
13. Appeal is allowed on the above lines.
Appeal allowed.

[2007 (2) TNCJ 533 (SC)]

SUPREME COURT
BEFORE:
DR. ARIJIT PASAYAT AND S.H. KAPADIA, JJ.
MICROWAVE PROJECT, KOTA AND ANOTHER ...Appellants
Versus
RAMESH CHAND ...Respondent
[Civil Appeal No. 2851 of 2005, decided on 18 July, 2007]
th

Industrial Disputes Act, 1947—Sections 10(1), 25-F and 2 (oo)—Re-employment

—With 30% back wages —Legality of—Employment was for a specific project on a
casual basis—Establishment itself closed after completion of the work—Tribunal failed
to consider the effect of Section 2 (oo) (bb) of the Act—Award made taking
non-compliance of requirements of Section 25-F of the Act— Applicability of Section
25-F would be dependant upon the basic question relating to applicability of Section 2
(oo) (bb) of the Act—Such aspect has been lost sight—Appropriate to remit the matter
before the Tribunal for fresh consideration—Orders passed accordingly.
(Paras 6 and 7)
JUDGMENT
DR. ARIJIT PASAYAT, J.—Challenge in this appeal is to the order passed by a
Division Bench of the Rajasthan High Court, Jaipur Bench, dismissing the special leave filed
by the appellant.
2. Background facts in a nutshell are as follows:
Respondent was engaged as a casual labourer by the Assistant Engineer of the
Microwave Project Borabas for the job of fixing of nuts and bolts in the Microwave Tower.
After completion of the work and commissioning of the Microwave Towers, respondent was
relieved from his job on 1.12.1987. Office of the Microwave, Kota, was also abolished as
there was no need of work and in any event it was only of casual nature. Respondent raised a
dispute to the effect that there was termination of his services which is illegal. The Labour
Ministry, Govt. of India vide order dated 30.9.1991 referred the following dispute under
Section 10(1) of the Industrial Disputes Act, 1947 (in short the ‘Act’) to the Industrial
Tribunal (Central) Kota, Rajasthan.
“Whether the action of the AEN Microwave Project, Kota and LET, Jaipur in
terminating the services of Shri Ramesh Chand, S/o Shri Jankidas, Casual Labour
under AEN Microwave Project, Kota at Lawatbhata w.e.f. 1.12. 1987 is
justified? If not, to what relief the concerned workman is entitled?”
3. On behalf of the applicant it was pleaded that he had been engaged as casual
labourer on 8.12.1986 and, therefore, he having worked for more than 240 days in 12
calendar months could not have been terminated. The appellant took the stand that the
respondent was engaged for doing a particular work on a casual labour basis. Since the
establishment itself was closed after completion of the work there was no scope for accepting
the prayer of the respondent. The Tribunal held that since the respondent worked for 240
days in the establishment of the present appellant, his termination will be bad as there was
violation of the mandatory requirements of Section 25-F of the Act. Removal from
service amounted to retrenchment under Section 2 (oo) of the Act. With these conclusions it
was held that the respondent was entitled to be re-employed to continue to be in service along
with the 30% back wages. A writ petition was filed before the High Court. A learned Single
Judge by a very cryptic order held that the Labour Court has held that there was violation of
the requirements of Section 25-F of the Act and, therefore, there was no legality. The
Division Bench came to the similar conclusions.
4. In support of the appeal learned counsel for the appellant submitted that there is no
dispute that the engagement was for a specific project. The Tribunal has categorically noted
about these aspects but granted relief to the respondent. It was noted that the office of the
present appellant was under the Jaipur Division and the new Kota Division has been created
after bifurcation of the Division.
5. In response, learned counsel for the respondent submitted that it should be accepted
that the project has been completed, yet in view of the fact that there was bifurcation, the
Tribunal was justified in its conclusion.
6. We find that the Tribunal failed to consider the issues in proper perspective. The
effect of Section 2(oo)(bb) has been completely lost sight of. There was no dispute that the
employment was for a specific project. There was no discussion of the various materials
produced before the Tribunal. The orders of the High Court proceeded on the basis that
because there was non-compliance with the requirements of Section 25-F, the Award was
justified. The question of the applicability of Section 25-F of the Act would be
dependent upon the basic question relating to applicability of Section 2(oo)(bb) of the
Act. That aspect has been lost sight of. We, therefore, think it appropriate to remit the matter
to the Tribunal for fresh consideration. Parties will be permitted to place material in support
of their respective stand. As the matter is pending since long, we request the Tribunal to
dispose off the matter within a period of four months from the date of receipt of the copy of
this judgment.
7. Appeal is allowed with no orders as to costs.
Appeal allowed.
 [2007 (2) TNCJ 535 (Mad)]
MADRAS HIGH COURT
BEFORE:
M. CHOCKALINGAM, J.
S.A. NATARAJAN AND ANOTHER ...Petitioners
Versus
P.K. THANGAMANI AND OTHERS ...Respondents
[C.R.P. (NPD) No. 1960 of 2007 and M.P. No. 1 of 2007, decided on 16 th July 2007]
Civil Procedure Code, 1908—Section 47—Application by persons alleging
themselves to be bona fide purchaser of property after charge have been created and
willing to make the payment of the entire decree amount—Setting aside of the sale
sought— Rejection of, at initial stage unnumbered without making any enquiry—
Legality of—Fit and proper to direct the Court to number the application and make an
enquiry by calling the persons as representative of the judgment debtor as envisaged
under Section 47 of the Code—Parties given liberty to put forth all the
contentions available in law—Accordingly direction issued.
(Paras 3 to 5)
Counsel.—Mr. AR.L. Sundaresan, Senior Counsel for Mr. Raja Srinivas, for the
petitioner.
JUDGMENT
M. CHOCKALINGAM, J.—Challenge is made to an order of the learned Subordinate
Judge, Tiruppur in rejecting the application at the stage when it remained unnumbered in
CFR. No. 6662 of 2007 filed by the petitioners herein in E.P.No.18 of 2005 whereby
execution of the decree in O.S.No. 111 of 1999 was sought for by the decree holder.
2. The Court heard the learned senior counsel for the petitioner.
3. The suit was filed for return of advance money paid for the purchase of property.
While that being so, a charge was created on the said property by the Court in respect of that
amount. Having obtained that part of the decree, the decree holder put in execution in
E.P.No.18 of 2005 wherein he brought the property for sale for the realisation of the decree
amount. The auction was conducted on 3.1.2007 and at that stage, stamp papers were called
for pending confirmation. At that juncture, the instant application was filed alleging that
after passing of the decree, the petitioners have purchased the same property for valuable
consideration without notice and thus though charges have been created, they are willing to
make the payment of the entire decree amount. Hence, the sale has got to be set aside. For
this an application has been preferred by the petitioners and that application was rejected at
the initial stage itself, without being numbered. The only contention of the learned senior
counsel appearing for the petitioners is that the lower Court should have numbered the
application, made an enquiry and take a decision since application under Section 47 of the
Civil Procedure Code can be filed not only by the parties between the suit, but also filed by
the representative of the party to the proceedings. In the instant case, the petitioners have
purchased the property. After that charges have been created over the property. However, so
far as the charges were concerned, it is under the position of simple mortgage. Under the
circumstances the petitioners sought for a payment of decree amount by way of
encumbrance and to set aside the sale. For that purpose, the application should have been
numbered and an enquiry should have been made on the said application.
4. After careful consideration of the submission of the learned senior counsel for the
petitioners, the Court is of the considered opinion that it is a fit and proper that a direction
be issued to the lower Court to number the said application and to make an enquiry, by
calling the petitioners as representative of the judgment debtor as envisaged under Section 47
of the CPC. The parties should be given an opportunity before taking a decision by the lower
Court by making an enquiry in the matter. Accordingly, the lower Court is directed to
number the application, and enquire into the matter in accordance with law. There is no
impediment for the both the parties to put forth all other contentions which are available in
law.
5. With the above observation, the Civil Revision Petition is disposed of. No costs.
Consequently, connected MP is closed.
C.R.P. disposed of.

[2007 (2) TNCJ 537 (SC)]

SUPREME COURT
BEFORE:
DR. ARIJIT PASAYAT AND LOKESHWAR SINGH PANTA, JJ.
COMMISSIONER OF CUSTOMS, KOLKATA ...Appellant
Versus
M/S. PEERLESS CONSULTANCY SERVICES PVT. LTD. ...Respondents
[Civil Appeal Nos. 5415-5417 of 2002, decided on 24 th May, 2007]
Customs Act, 1962—Sections 113 (d) and 114—Foreign Trade (Regulation)
Rules, 1993—Rules 11 and 14—Foreign Trade (Development and Regulation) Act, 1992
—Section 3 (3)—Show-cause notice—For gross mis-declaration of material facts and
the value of the steel balls and wilful mis-statement and suppression and violation of
the provisions—Challenged in appeal—Demands confirmed—Appeals before
CEGAT—Appeals allowed—Legality of—Foreign buyer purchased the goods for
agreed FOB and made full payment—Entire export proceeds have been realized in
foreign currency and copies of bank remittances/FIRC were filed—No allegation or
finding that the foreign buyer was a related person—FOB was fully supported by all
export documents such as invoices and shipping bills and by documents as regards its
realization such as BRC/FIRC—Commissioner referred various aspects in detail to
conclude about over-invoicing—Tribunal came to abrupt conclusions without
discussing in detail as to how the conclusions of the Commissioner were erroneous—
Vulnerable order—Set aside— Matter remitted before CEGAT for fresh
adjudication.
(Paras 5, 7 to 11, 17, 19 and 20)
Case law.—2007 (309) ELT 331 (SC).
JUDGMENT
DR. ARIJIT PASAYAT, J.—Challenge in these appeals is to the orders passed by the
Customs Excise and Gold (Control) Appellate Tribunal, EZB Kolkata (in short the
‘CEGAT’) allowing the appeals filed by the respondent holding that the guidelines contained
in circular No.69/97-CUS dated 8.12.1997 issued by the Government of India, Ministry of
Finance, Department of Revenue, New Delhi, as it has not succeeded in making out a case
against respondent as the Present Market Value (in short the ‘PMV’) declared is not more
than 150% of the AR 4 value. Accordingly the order passed by the Commissioner of
Customs (Post) Kolkatta was set aside.
2. Background facts in a nutshell are as follows:
3. The Respondent company which is engaged in the business of computerized
printing exported for the first time consignments of steel balls of a total declared value at
Rs.14.63 crores to one M/s. Ria Multiple Enterprises of Malaysia under Duty Entitlement
Pass Book (in short the ‘DEPB’) Scheme. Incidentally, the consignee is also a dealer of
computer and information technology based products who also acts as General Insurance
Agent. Exports were made under DEPB scheme and a claim of Rs.3.20 crores was made.
4. In the light of information received by DRI of gross over-invoicing of the
goods to avail higher DEPB credit, it conducted investigation which revealed inter-alia that:
(i) the declared P.M.V. varies between 98.35% to 124% of the declared Export Price
(described as ‘FOB’).
(ii) the shipments were effected between 11.06.99 and 25.08.99 as per Bill of Lading
date and as per the contract, the terms of payments is DA 60 days’.
(iii) Till 31.5.2000, the assessee received payment for 3 consignments only and further
till 11.10.2000 they received payment of only 5 consignments out of 16.
(iv) the declared FOB value for different size Steel Balls comes as under:
Steel Balls 3.17mm size Rs.0.70per pc. Steel Balls 6.35mm size Rs.l.30 per pc.
(v) it has been claimed that the PMV was declared on the basis of price quoted by the
local suppliers and the variation in the declared PMV is due rejection on quality
check.
(vi) The FOB value of the consignment was fixed on the basis of price agreed upon by
the foreign buyer.
(vii) The FOB value declared is highly inflated only to avail greater amount of DEPB
Credit.
(viii) The explanation offered to substantiate highly declared FOB vis-a-vis the PMV has
no basis in as much the agreement of precision quality, quality control checking by
an expert, are all afterthought having no consistency and no evidence whatsoever
could be produced in this regard.
(ix) Neither the export nor the foreign buyer or even the local suppliers are regular
dealers of Steel balls in as much neither the exporter nor the local suppliers
could produce any piece of evidence of sale of such Steel Balls to any other party
in India or abroad excepting the production of evidence of sale by M/s. S.F.
Forging to one M/s. Arlun Automobile, that too for the purpose of export under
DEPB scheme.
(x) Surprisingly the suppliers had received only about 1/4th or 1/3rd of the so called
sale value amount but did not receive huge sum of money which was due as
balance of payment towards supply of goods for over an year.
 (xi) Based on the aforesaid revelation, the declared PMV as well as the FOB value
seems to be very high compared to the actual market value of the goods.
(xii) It appears that the entire deal had taken place in a manner which is not consistence
with normal trade practice and the declared FOB value as well as the PMV had
been highly inflated with intent to wrongly avail export benefit under DEPB
Scheme.
5. Accordingly, alleging gross mis-declaration of material facts and the value of the
steel balls and wilful mis-statement and suppression and violation of Section 113(d) of
Customs Act, 1962 (in short the ‘Act’) read with Rule 11 of Foreign Trade (Regulation)
Rules, 1993 (in short the ‘Foreign Trade Rules’) and for penal action under Section 114 of
the Customs Act, a Show-Cause Notice was issued asking to show cause as to why
(i) the PMV and FOB value should not be taken as Rs.2,80,52,027/- and
Rs.2,73,60,806/- respectively.
(ii) The permissible DEPB credit against the goods exported should not be taken as
Rs.60,19,377/-.
(iii) The goods exported cover 16 Nos. of Shipping bills having total declared FOB
value of Rs.14,91,89,854.00 shall not be held liable for confiscation under 113(d)
of the Act.
(iv) Penal action shall not be taken against the exporter and its Director Sri Parasmal
Lodha and Sri N.R. Bachhawat authorized signatory under Section 114 of the
Act.
6. In support of the appeal learned counsel for the appellant submitted that Sri
Parasmal Lodha who was the Director of the respondent Company had clearly admitted
about the following aspects:
(i) The Company’s main line of business is computerized printing.
(ii) The benefit of DEPB scheme attracted to venture into steel balls export and also
took the risk of exporting to the party on credit which is a big risk.
(iii) The payment was to be made within 60 days and the payments were delayed by
over 6-18 months.
(iv) 90% of the payment was already received and the balance was to be cleared by
15.4.01, i.e. after the enquiry started in the year 2000.
(v) He does not have any idea about the international price of steel balls.
(vi) He received major payments from buyer only after September 2000 and he cleared
the claimed outstandings of local suppliers.
(vii) He was aware of the process or method used for checking the quality of the steel
balls. But he had engaged an expert.
7. On the basis of the aforesaid materials the Commissioner recorded the following
findings:
“(1) Background facts clearly indicate that the whole exercise was not done in
the usual course of business and there was definitely something wrong.
(2) The exporter does not know the international price of his exported
products, cannot produce any evidence regarding the quality of his goods,
can submit quotations of only those companies from whom he
purchased the goods and above all, exports goods worth Rs.14.91 crore
 were without the cover of any letter of credit and it sat tight when
remittance of Rs.14.91 crores did not come within the stipulated time.”
8. All these clearly show that the shipping bills and the export invoices do not reflect
the correct transaction value. He was therefore, inclined to hold that the subject goods
were over invoiced with an intent to wrongly avail higher DEPB credit and the PMV
indicated on the shipping bills was also inflated. He rejected the FOB value as well as the
declared PMV. He held that the FOB value and the PMV of the subject goods need to be
ascertained on the basis of the findings of the market enquiry.
9. With regard to PMV, the Commissioner held as under: “I find that the guidelines for
verification of the PMV and the FOB Value have been suitably followed by DRI. Nowhere in
the above mentioned 3 circulars issued by the Board, it is stated that the PMV would be
challenged/rejected/modified on the basis of evidence of contemporaneous export. It is to be
done on the basis of the findings of the market enquiry only. I, therefore, accept the
proposal of ascertaining the PMV and the FOB value as given in the show cause notice.”
10. The Commissioner accordingly inter alia held as follows:
“The subject goods exported under claim of DEPB credit did not correspond to the
declaration made regarding the same on the shipping bills in respect of the value
and DEPB benefit, since it was declared on the shipping bills that the benefit
under the DEPB scheme would not exceed 50% of the present market value. The
same should be deemed to be prohibited in terms of Rules 11 and 14 of the Foreign
Trade (Regulation) Rules, 1993 read with Section 3(3) of the Foreign Trade
(Development & Regulation) Act, 1992 and Section 11 of the Customs Act, 1962
and, therefore, should be held liable for confiscation under Section 113(d) of the
Customs Act.”
11. He accordingly confirmed the demand made in the Show-Cause Notice.
12. Aggrieved by the orders passed by the Commissioner, the respondent filed appeal
before the CEGAT.
13. Allowing respondents’ appeals, CEGAT accepted the stand of the assessee. Its
conclusions were essentially as follows:
“The PMV, in our view, cannot be challenged by going into the cost of
manufacture. Market enquiry into the prices of the steel balls of size 6.3mm and
3.17 conforming to AISI:316 Grade should have been ascertained from the market
which has not been done. The burden to prove that PMV is inflated one is on
the Department which has not been discharged. It is mentioned in the show-
cause notice itself that the local suppliers had supplied the exported goods at price
ranging from Re.l to Rs.1.25 per piece of 6.35 mm and Re.0.56p to Re 0.70p per
piece of 3.17 mm. There is no allegation in the show-cause notice against the
local suppliers nor there is any mention that the payment made to local
suppliers subsequently flowed back to the Appellants.”
“In view of these guidelines, the Revenue has not succeeded in making out a case
against the appellants as the PMV declared is not more than 150% of AR4 value.
Accordingly, we set aside the impugned order and allow all the appeals”.
14. According to appellant, the Tribunal has failed to note that the findings recorded by
the Commissioner were based on the evidence tendered by the company from which it
can be clearly inferred that there has been a mis-declaration and misstatement only with
the object to boost the value to get higher DEPB benefit. The entire transaction is vitiated by
misstatement, mis-declaration and suppression of material facts which has not been
considered by the Tribunal.
15. It is pointed out by the learned counsel for the appellant that absolutely no reason
has been indicated by the Tribunal to set aside the elaborate order passed by the
Commissioner. There were clear findings of over invoicing. So far as Circular No.69/97 is
concerned, it only delineates the general principles. The fraudulent transaction was clearly
established. Approach of the Tribunal is relevant from the abrupt conclusions arrived at.
16. In response, learned counsel for the respondent submitted that the issues involved
in the appeal relate to the DEPB credit allowable to the respondent under the Export and
Import Policy, 1997-2002 (in short the ‘EXIM Policy’). With reference to para 7.25 of the
EXIM Policy, DEPB was allowable as a percentage of FOB value of exports. In para 7.36 of
the Handbook of Procedures, 1997-2002 (in short the ‘Handbook’), if the rate of credit
entitlement was 15% or more, the credit shall not exceed 50% of the PMP of the export
product.
17. In the present case, the foreign buyer purchased the goods for agreed FOB and
made full payment. Entire export proceeds have been realized in foreign currency and copies
of bank remittances/FIRC were filed. There is no allegation or finding that the foreign buyer
was a related person. FOB was fully supported by all export documents such as invoices and
shipping bills and by the documents as regards its realization such as BRC/FIRC.
18. It is stated that the expressions ‘FOB’ and ‘PMV’ were not defined in the EXIM
Policy. However, the method of determination was laid down by the Ministry of Finance in
the Circular No.69/97.
19. It is submitted in almost identical case in Commissioner of Custom, New Customs
House, Mumbai v. Vishal Exports Overseas Ltd., 2007 (309) E.L.T. 331 (S.C.), this Court
has dismissed the appeal filed by the Revenue.
19. We find that the Commissioner had in detail referred to various aspects to conclude
about over-invoicing. The applicability of Circular No.69/97 would depend upon the factual
scenario of a particular case.
20. In the instant case, what the Tribunal appears to have done is to refer to the
arguments of parties and then came to abrupt conclusions without discussing in detail as to
how the conclusions of the Commissioner were erroneous. That having not been done the
order is vulnerable. Accordingly, we set aside the order of the CEGAT and remit the same to
it for fresh adjudication. It is to be noted that present CEGAT is known as Customs, Excise
and Service Tax Appellate Tribunal (in short ‘CEGAT’).
The appeals are allowed to the aforesaid extent. We express no opinion on the merits
of the case.
Appeals allowed.

[2007 (2) TNCJ 543 (Mad)]

MADRAS HIGH COURT
BEFORE:
S. ASHOK KUMAR, J.
DINAKARAN ...Petitioner
 Versus
VENKATESAN AND OTHERS ...Respondents
[C.R.P. (PD) No. 273 of 2005, decided on 17 July, 2007]
th

(A) Practice and procedure—When there is a conflicting judgments by the two

co-equal Benches, the judgment of the larger Bench which directly deals with in detail
about the controversy has to be preferred than the other judgment which does not
discuss about such controversy. (Para 14)
(B) Civil Procedure Code, 1908—Section 115—Admissibility of document—No
document shall be admitted in evidence if it is not properly stamped—And if already
not stamped, then stamp duty should be paid with penalty as prescribed by the
authority— Plaintiff himself admitted the existence of koorchit in his evidence—
Unless the document is marked there will not be any opportunity for the plaintiff to
oppose and cross-examine the defendants on the execution of the koorchit—Absence of
payment of stamp duty with penalty—Trial Court committed error in marking the
document—Order of trial Court modified—Directions issued to ascertain the stamp
duty and penalty upon the disputed document—Call defendants to pay the stamp
duty and penalty and only then admit the document in evidence.
(Paras 17 and 18)
Case law.—2004 (4) CTC 143; 2004 (3) CTC 481; 2003 (3) MLJ 45; 2006 (1) TLNJ
(Civil) 595; 2005 (2) CTC 385; 2006 (2) LW 437; 2005 (1) LW 343 (DB); 2004 (1) LW 706;
AIR 1987 Pat 191 (FB); 2005 (4) MLJ 337; 2001 (3) SCC 1; 2001 (1) CTC 112; 2004 (3)
MLJ 362.
Counsel.—Mr. V. Raghavachari, for the petitioner; Mr. S. Umapathy, for the
respondents.
JUDGMENT
S. ASHOK KUMAR, J.—The above civil revision petition is filed against the fair and
decretal order dated 4.1.2005 made in I.A.No.258 of 2004 in O.S.No:152 of 2000 by the
learned Subordinate Judge, Arni, dismissing the I.A., filed by the plaintiff under Order XIII,
Rule 3, CPC to reject the koorchit dated 19.5.1997, sought to be marked by the
respondents/defendants on the ground that it is an unregistered document.
2. The revision petitioner/plaintiff filed the suit for partition of the suit schedule
properties into 4 equal shares and to allot one share to him. The respondents are contesting
the suit. It is the case of the respondents that their father died in the year 1994, after his
death they entered into an understanding about the sharing of the joint family properties on
7.6.1996, thereafter to give effect to the understanding reached, they entered into a
family arrangement (Koortchit) on 19.6.1997 with regard to the suit schedule properties. In
continuation of understanding reached on 7.6.1996, they reduced the same into writing about
the sharing of properties with its descriptions and they are in enjoyment of their respective
shares. It is the case of the respondents that the plaintiff being the eldest son is keeping the
original koorchit and the plaintiff has filed the suit falsely after 4 years of the said family
arrangement.
3. During trial, the defendants marked photostat copy of the said koorchit dated
19.6.1997 which is unregistered. The plaintiff filed the I.A., to reject the said document. The
respondents resisted the said I.A., stating that the very existence of the said koorchit has been
admitted by the plaintiff in his evidence. The learned Subordinate Judge, Arni on a
consideration of the pleadings and submissions of the respective counsels, dismissed the
said application holding that the document can be marked as an exhibit recording the
objection raised by the plaintiff and also to frame an additional issue with regard to the
admissibility of the said document. Aggrieved of the same, the present revision is filed.
4. Learned counsel for the revision petitioner/plaintiff contended that since right of an
immovable property has been transferred by the koorchit in question, the same requires stamp
duty and registration. Further the said koorchit is sought to be introduced after the
examination of the parties are over and at the time when the matter is posted for arguments. It
is also contended that the admissibility of the document should be tested at the time of
production of the document under Section 35 of the Stamp Act and not at a later stage.
5. On the contrary, it is contended by the learned counsel for the respondent that the
family arrangement is a matter of fact and evidence on record that the plaintiff and the
defendants divided the property and are in possession and enjoyment of their respective
shares for all these years and in fact the petitioner has sold some trees that fell in his share
and also gave no objection for transfer of the patta and electricity connection to be obtained
by the third defendant.
6. It is also contended by the learned counsel for the respondents that oral partition
and subsequent family arrangements reduced into writing are admissible and they have the
same effect of a registered deed. Learned counsel also relied on the judgment of the Apex
Court in 2004 (4) CTC 143 to the effect that after partition deed when the parties have
independently dealt with the properties by effecting sales and effected mutation and also paid
assessment separately, the partition deed though unregistered does not require registration
and the admissibility of the document can be looked into only at the time of trial. The
decision of this Court reported in 2004 (3) CTC 481 is also relied on for the proposition of
law that the question regarding the time at which documents were produced are to be tested
in trial after marking the same.
7. In 2003 (3) MLJ 45 (Balakrishnan & another v. Chandrasekharan), this Court held
that it is settled law that if the family arrangement is reduced to writing and it purports to
create, declare, assign, limit or extinguish any right, title or interest of any immovable
property, it must be properly stamped and duly registered as per Indian Stamps Act
and Indian Registration Act. But in the said decision it has been observed that if the family
arrangement is stamped, but not registered, it can be looked into for collateral purposes.
8. In 2006 (1) TLNJ (Civil) 595 (Lingappa Gounder v. Palanisamy and others) this
Court again held that interest on immovable properties for more than Rs.100/- are
transferable only through a registered document as per Section 17 of the Indian
Registration Act.
9. In 2005 (2) CTC 385 (Amudha and others v. K.Jeyaraman and another) this Court
held that even the suit property claimed to be purchased out of ancestral nucleus as
evidenced by such unregistered document cannot be received in evidence and the defect of
non registration cannot be cured by paying penalty.
10. In 2006 (2) LW 437 (Pyarijan v. Puttapa and another) also this Court held that
when the document is inadmissible in evidence it cannot be looked into for any purpose and
under Section 49 of the Registration Act, no document required by Section 17 or any of the
provisions of the Transfer of Property Act to be registered shall be received as evidence of
any transaction affecting immovable property, and the same cannot be used in any legal
proceedings to bring out indirect effect which it would have if registered. This Court further
held that documents which are inadmissible for want of registration may at times be
admissible for collateral purpose. A collateral purpose is a purpose other than creating,
declaring, assigning, limiting or extinguishing a right of immovable property and in this
case the purpose of document is for advancement of loan and at the same time creating an
interest in the immovable property to enjoy the usufructs for a period of three years, the
document being unregistered is inadmissible in evidence of the transaction, affecting the
immovable property.
11. In 2005 (1) LW 343 (DB) (R.Deivanai Ammal (died) and Anr. v. G.Meenakshi
Ammal and others), a Division Bench of this Court reiterated that if document of family
arrangement is reduced to writing, it purports to create, declare/extinguish right, title or
interest of the properties and in such circumstances it must be properly stamped and
duly registered as per the Stamp Act and Registration Act.
12. In 2004 (I) LW 706 (Bondar Singh v. Nihal Singh) wherein their Lordships have
held that “Under the law, a sale deed is required to be properly stamped and registered
before it can convey title to the vendee. However, legal position is clear law that a
document like the sale deed in the present case, even though not admissible in evidence, can
be looked into for collateral purposes.” The learned counsel also relied on the Division Bench
of this Court reported in 2004 (3) MLJ 362 (Venugopal @ Alagarsamy and ors. v. Bajanai
Alagarsamy and another) wherein this Court held that “though unregistered documents are
inadmissible in evidence, they may be considered for collateral purpose”.
13. In AIR 1987 Pat 191 (FB) (Amar Singh Yadav v. Shanthi Devi) a Full Bench of the
Patna High Court held that where there is a direct conflict between two decisions of the
Supreme Court by co-equal Benches, the High Court must follow the judgment which
states the law more elaborately and accurately and the question whether the decision is earlier
or later, is not the criteria.
14. Therefore, when there is a conflicting judgments by the two co-equal Benches, the
judgment of the larger Bench which directly deals with in detail about the controversy
regarding the stamp Act has to be preferred than the other judgments which does not discuss
about such controversy.
15. However, in 2005 (4) MLJ 337 (Tmt.Indirani v. Seetharaman), which is elaborate
on the point of admissibly, a learned Single Judge of this Court held as follows:—
“14. In Bondar Singh and others v. Nihal Singh and others, (2004) I L.W. 706 the
Apex Court has observed:
‘Under the law, a sale deed is required to be properly stamped and registered
before it can convey title to the vendee. However, legal position is clear law that
a document like the sale deed in the present case, even though not
admissible in evidence, can be looked into for collateral purposes.’
15. This observation guided the learned trial Judge to admit the documents, in
question, in evidence, though they are unstamped. In the case involved in the
above decision also, the documents ought to be relied on was an unregistered and
unstamped sale deed. But, the same was admitted, in evidence, for collateral
purposes. Though such an observation has been made, the Hon’ble Apex Court has
not considered the effect of Section 35 of the Stamp Act. If Section 35 of the
Stamp Act was considered and the wording stated therein, viz., ‘for any
purpose’, is ignored, then, if it is said, it can be taken as the law declared by the
Apex Court, which is binding upon the Courts below throughout the breadth and
length of this country. As seen from the above decision, nowhere it is discussed
about the effect of Section 35 of the Stamp Act, though in the head note, the
publishers have stated, Stamp Act Sections 35, 32, 36 Registration Act, 49, etc.
In the absence of any discussion about the payment of stamp duty and penalty,
mere observation that the document could be looked into, for collateral
purposes, alone, is not sufficient to allow all the documents unstamped, which
required stamp duty, should be admitted in evidence, thereby offending the statute
viz., in this case Section 35 of the Stamp Act. In this context, it is useful to refer to
the decision of the Apex Court in Bipin Shantilal Panchal v. State of Gujarat and
another, (2001) 3 SCC 1 and Chilakuri Gangulappa v. Revenue Divisional Officer,
Madanapalle and another, (2001) 2 MLJ 33(SC).
16. In the first decision, the objection raised regarding the admissibility of a
document came before the Apex Court, for consideration. The Apex Court in a
way, criticised the archaic practice and prescribed guidelines as to how the
documents should be admitted in evidence, despite the objection raised by the
other side. It is observed that:
“Whenever an objection is raised during evidence taking stage regarding the
admissibility of any material or item of oral evidence, the trial Court can make a
note of such objection and mark the objected documents tentatively as an
exhibit in the case (or record the objected part of the oral evidence) subject to such
objections to be decided at the last stage in the final judgment. If the Court finds at
the final stage that the objection so raised is sustainable, the Judge or Magistrate
can keep such evidence excluded from consideration. In our view there is no
illegality in adopting such a course. (However, we make it clear that if the
objection relates to deficiency of stamp duty of a document, the Court has to
decide the objection before proceeding further. For all other objections, the
procedure suggested above can be followed.”
17. The last portion of the above observation makes it clear that if the objection
relates to deficiency of stamp duty of a document, the Court has to decide the
objection before proceeding further.’ Therefore, in this case, the trial Court
should have considered, whether the documents require stamp duty and penalty or
not, before allowing the documents to be admitted, in evidence, for collateral
purposes, which was not followed. Therefore, I am unable to affix my seal of
approval, as such, to the order passed by the trial Court, which requires
modification.
18. In the second case viz., Chilakuri Gangulappa v. Revenue Divisional
Officer, Madanpalle and another, (2000) 2 MLJ 33, the Apex Court considering
Section 38 of the Indian Stamp Act, 1899, and the fact under what circumstances,
as insufficiently stamped document could be admitted in evidence, has observed
that it is the duty of the Court, at the first instance, that if the Court finds that the
instrument is insufficiently stamped, it should call upon the party, as to whether he
would remit the deficient portion of the stamp duty together with a penalty,
amounting to ten times the deficiency, and in the case if the party agrees to remit
the said amount, the Court has to proceed with trial, after admitting the document
in evidence. Then, it contemplates what are the further proceedings to be initiated
under Section 38 of the Stamp Act etc. In the case involved in the above decision
also, an insufficiently stamped document came to the consideration of the Apex
Court. If the Apex Court was of the view that un-stamped or unregistered
documents are, automatically, to be admitted in evidence, without reference to
 Section 35 of the Indian Stamp Act, then the Apex Court would not have observed
that the Court should call upon the party to remit the deficient portion of the stamp
duty together with a penalty, amounting to ten times the deficient or even the lesser
penalty. Since the Apex Court was conscious about Section 35 of the Stamp Act,
while considering Section 38, it is observed on the basis of Section 38(1) of the
Stamp Act:
“It is clear from the first sub-section extracted above that the Court has a power to
admit the document in evidence if the party producing the same would pay the
stamp duty together with a penalty amounting to ten times the deficiency of
the stamp duty. When the Court chooses to admit the document on compliance of
such condition, the Court need forward only a copy of the document to the
Collector, together with the amount collected from the party for taking
adjudicatory steps.
Thus, showing, if the party fails to pay the stamp duty and penalty, the document is
not to be admitted in evidence, in view of the embargo contemplated under Section
35 of the Stamp Act. This ruling also, supports Section 35 of the Stamp Act, that
no document shall be admitted in evidence for any purpose, unless it is properly
stamped, and in case, if it is not properly stamped, without payment of stamp duty
and penalty and that is the reason, we find the words in Section 38(1) of the Stamp
Act that ‘when the person impounding an instrument in evidence, upon payment of
a penalty, as provided by Section 35 or of duty as provided by Section 37...’thereby
confirming, without payment of stamp duty and penalty, no document shall be
admitted in evidence. xxx xxx
xxx 20. There cannot be any dispute, as long as Section 35
of the Stamp Act is available in the Statute, that the same is to be applied for all the
instruments, which require stamp duty. This being the position, unless a finding is
given as observed by the three Judges Bench of the Apex Court, in Bipin Shantilal
Panchal v. State of Gujarat, (2001) 3 SCC 1, regarding the stamp duty and
penalty, the document cannot be admitted in evidence, as if it can be looked
into for collateral purpose. No doubt, it is true, a document, which is unregistered
or unstamped can be looked into for collateral purpose, provided, provisos to
Section 35 of the Stamp Act are complied with, and not otherwise. The above
position of law was not considered properly by the trial Court and therefore, the
order of the trial Court requires modification, in my considered opinion, in view of
the admitted position that the documents in question, require stamp duty and
penalty”.
16. I am in agreement with the views expressed by my Learned Brother
M.Thanickachalam, J. Though the judgment of the Supreme Court relied on by the revision
petitioner in 2001 (1) CTC 112 (AC.Lakshmipathy and Anr. v. A.M.Chakrapani Reddiar and
6 Ors), still, the judgment of this Court in 2005 (4) MLJ 337 (Tmt.Indirani v. Seetharaman)
relied on by the learned counsel for the respondent, which is supported by several decisions
of the Apex Court as relied on by the learned Single Judge in the said decision, has to be
followed, because the point is not which is the earlier or later, but the point is which
judgment discusses the point in issue directly involved in the particular case elaborately and
accurately.
17. Therefore it is clear that no document shall be admitted in evidence if it is not
properly stamped, and if already not stamped, then stamp duty should be paid with penalty as
prescribed by the authority. As far as the present case is concerned, it is alleged that the
plaintiff himself admitted the existence of the koorchit in his evidence. As rightly held by the
trial Court unless the document is marked, there will not be any opportunity for the plaintiff
to oppose and cross-examine the defendants on the execution of the said koorchit. In the
absence of payment of the stamp duty with penalty, the trial Court has committed an error in
marking the document. Hence, the order of the trial Court is liable to be modified.
18. In the result, this CRP is allowed in part and the order of the trial Court is
modified. The trial Court is directed to ascertain the stamp duty and penalty payable upon the
disputed document, then call upon the defendants who want to rely on the document, to pay
the stamp duty and penalty, and then on payment of stamp duty and penalty, admit the
document in evidence, whether it is for collateral purpose or otherwise, and admissibility
of the same can be decided by framing necessary issue at the later stage while hearing the
case as guided by the Apex Court in Bipin Shantilal Panchal v. State of Gujarat and another,
(2001) 3 SCC 1. Consequently, connected MP is also dismissed. No costs.
Petition partly allowed.

[2007 (2) TNCJ 552 (Mad)]

MADRAS HIGH COURT
BEFORE:
J.A.K. SAMPATH KUMAR, J.
K. VARADHAN AND ANOTHER ...Appellants
Versus
SUBBARAYALU ...Respondent
[A.S.No. 1016 of 1991, decided on 2 March, 2007]
nd

Civil Procedure Code, 1908—Section 100—Second appeal—Specific performance

of agreement—Burden on agreement holder to prove his readiness and willingness to
perform his part of contract to sustain equitable relief—Plaintiff was not possessed
of sufficient funds to perform his part of contract which necessitated him to send letter
to the uncle of the defendant for getting back the advance amount paid by him as per
the agreement under dispute—Lower Appellate Court not construed the letter in the
right perspective—Resulting in miscarriage of justice—Finding of the lower
Appellate Court unsustainable—Set aside.
(Paras 12, 13, 18, 21 and 22)
Case law.—2003 (4) SCC 161; AIR 1996 SC 116; AIR 1994 Delhi 349; AIR 1965 Mad
85 (DB).
Counsel.—Mr. S. Parthasarathy, Senior Counsel, for Mr. R. Parthiban, P.
Mahadevan and S. Silambanan, for the appellants; Mr. T.R. Rajaraman, for the respondent.
JUDGMENT
J.A.K. SAMPATH KUMAR, J.—This appeal is filed against judgment and decree
dated 19.9.1991 in O.S.No.179 of 1990 on the file of the Subordinate Judge, Cuddalore in
and by which the learned Sub-Judge after analysing the evidence in depth found that the
plaintiff is entitled to suit claim and accordingly decreed the suit.
2. For convenience, the parties are referred as arrayed in the original suit.
3. Plaintiff states as follows:—
 3.1. The two items set out in the plaint are in survey number 621/0. The total extent in
that survey number is 13 acres. First defendant purchased item 1 which is an extent of four
acres in the said survey number, and the second defendant purchased an equal extent in the
same survey number with specific boundaries on 30.9.1986. On the same day, one Sridhar,
son of Perumal Naidu has purchased an extent of one acre in the said survey number and
another 2.68 acres in another survey number total lying 3.68 acres. All the said deeds were
executed on the same day by one and the same owners. The second defendant is the son-in-
law of the first defendant. The other party namely Sridhar is the brother-in-law of the first
defendant.
3.2. Defendants 1 and 2 represented to the plaintiff that they are agreeable to sell an
extent of about 12 acres of land to the plaintiff. They also represented that they along
with Sridhar had purchased the said property under three sale deeds and that they are in
enjoyment of the same. They offered to sell the property to the plaintiff including the
property purchased by Sridhar for Rs.1,50,000/-. The plaintiff was agreeable to purchase the
same.
3.3. At the time of the sale transaction, Sridhar was not present and he was away. But
defendants 1 and 2 assured the plaintiff that they will be able to convince him to sell the
property to the plaintiff. It is agreed that plaintiff should pay an advance of Rs.30,000/- and
should pay another Rs.70,000/- on or before 10.9.1989 and the balance at the time of
execution and registration of the sale deed. The terms of the agreement was reduced to
writing on 31.5.1989. As Sridhar was also expected to join and sign in the agreement, his
name also is mentioned as a party entering into a contract in the body of the document.
3.4. As agreed, plaintiff paid an advance of Rs.30,000/- on 31.5.1989 to defendants 1
and 2. The agreement was duly signed by plaintiff and defendants 1 and 2 leaving space for
Sridhar to sign. After the execution of the agreement, plaintiff has been telling the
defendants to get the signature of Sridhar in token of his consenting to the terms of the
agreement. But defendants 1 and 2 were giving some excuse or other and were postponing
the same and plaintiff now believes that they were not able to get the signature of Sridhar
perhaps Sridhar was not willing to enter into the agreement.
3.5. Any way, plaintiff was agreeable to purchase the property of defendants 1 and 2
which is set out in the plaint. Plaintiff also informed the defendants about his willingness to
purchase the suit property after paying Rs.70,000/-. He approached defendants 1 and 2 on
more than one occasion before 10.9.1989 with the money and wanted them to receive the
money and execute the sale deed in respect of the certain items. It so happened that the
second defendant wanted the plaintiff to pay the entire Rs.70,000/- to him. Plaintiff
was agreeable to this on one condition that the payment to be made to the second defendant is
acknowledged by the first defendant. But the second defendant was not willing for this
course. So, plaintiff could not pay the amount to them on or before 10.9.1989.
3.6. But, plaintiff has always been ready and willing to perform his part of the contract
namely to pay the balance amount of Rs.70,000/- and take a conveyance. Even now, he is
ready and willing to pay Rs.70,000/- and take the conveyance. Defendants 1 and 2 are bound
to sell the property to the plaintiff for Rs.1,00,000/- as the share of Sridhar cannot be sold to
the plaintiff. As defendants were evasive and did not co-operate in joining the plaintiff and
execute and register the sale deed after receiving the balance price, plaintiff is filing the
present suit.
4. Written statement of the first defendant adopted by the second defendant reads as
follows:—
 4.1. The plaintiff had not filed the suit bona fide. He has not come forward with the
entire facts. The suppression of facts is wilful. It is true that S.No.621 totals 13 acres and
that the defendants have each purchased 4 acres. Another acre was purchased by
Sridhar along with A.C.2.68 in S.No.624/1. When entering in to an agreement, it was
specifically agreed that time is the essence of contract. But the plaintiff has not chosen to
abide by it. The plaintiff was never ready and willing to perform his part of the contract.
The plaintiff never met the defendants with the balance of Rs.70,000/-. If really the money
was paid, there was no need for the defendants refuse to receive it.
4.2. In view of plaintiff’s failure to comply with the terms of contract, he has to lose
the advance amount paid. Because the plaintiff did not have money and does not have
money with him, he has filed the suit.
4.3. The plaintiff did not hand over the agreement to the defendants. Hence they
could not obtain Sridhar’s signature. To the notice issued by the plaintiff, the defendants
have issued a suitable reply. The defendants have been put to loss. Hence the suit is liable to
be dismissed.
5. Plaintiff was examined as P.W.1. Ex.A.1 to A.3 were marked on the side of the
plaintiff to prove his claim. Defendants examined as D.W.1 and D.W.2. Exhibit D.1 was
marked on the side of the defendants to disprove the claim of the plaintiff.
6. The lower Court after analysing the evidence in depth found that the plaintiff is
entitled to suit claim and accordingly decreed the suit.
7. Present appeal is filed by the defendants against such finding.
8. Heard Mr.S.Parthasarathy, senior counsel for the appellants and Mr.T.R.Rajaraman,
learned senior counsel for the respondent.
9. Upon hearing the rival claims the points for determination are:—
(1) Whether the plaintiff was ready and willing to perform his part of
contract?
(2) Whether the properties described in the suit and in the agreement of sale
are one and the same?
(3) Whether the plaintiff has given up his right for the specific performance of
the contract?
(4) Whether the finding of the lower Court in decreeing the suit is in order?
10. Points 1 to 3:—
Learned counsel for the respondent/plaintiff would contend that the plaintiffs were
ready and willing to perform his part of contract and that plaintiff was possessed with
sufficient funds to perform his part of contract and that the defendants were postponing the
registration of the sale deed and as such, the plaintiff is entitled to suit claim.
11. Learned senior counsel for the appellants/defendants contend that the plaintiffs
were not possessed of sufficient funds to perform their part of contract and that the plaintiff
has given up his right of specific performance of contract by sending letter as per Ex.B.1 and
that the lower Court without looking into the document viz., Ex.B.1 in the right perspective,
wrongly decreed the suit in favour of the plaintiff and therefore, the plaintiff was not entitled
to suit claim. The suit agreement is marked as Ex.A.1. Suit notice is marked as Ex.A.2.
Reply is marked as Ex.A.3. The genuineness of Ex.A.1 was not disputed. Ex.B.1 was filed
by the defendants to prove that plaintiff was not possessed of sufficient funds to perform
his part of contract. The genuineness of Ex.B.1 was not disputed by the plaintiff.
 12. In a case of specific performance of agreement, it is for the agreement holder to
prove that he was always ready and willing to perform his part of contract to sustain his
equitable relief. Therefore, the recitals in Ex.B.1 is useful to decide this proposition. It reads
as follows:—
“njthPh; khkh mth;fSf;F Rg;guhaY vGjpf; bfhz;lJ tzf;fk; jh’;fsplk; Twpag;go
u’;fehjg[uk; epyj;jpw;f;F bfhLj;j gzk; ml;thd;;!; U: 30/000-= jpUg;gp th’;fptpL’;fs; jh’;fs;
Twpago epyj;ij kzpyhgpo’;fp tpl;nld; epyj;ij jpU/nrfhplk; xg;gilj;JtpL kuts;sp kfr{y; vdf;F
njit ,y;iy mtnu kfr{iy vLj;J bfhs;sl;Lk; ,”;rpd; tp$aFkhh; Vw;wp bfhs;fpnwd; vd Twptpl;lJ/
mtrpak; vdf;F gzk; njitahf cs;sJ/ ntW epyk; ngrp cs;nsd; mjw;F gzk; fl;l ntz;Lk; jpU/rPDtplk;
Twp ,g;gzj;ij eP’;fs; fpHikf;Fs; vdf;F gzk; te;Jnru Vw;ghL bra;at[k; fhyk; jhH;j;j ntz;lhk;
mtrpak; ,ij rPDtplk; Twp gzj;ij th’;fp tut[k; kw;wit nehpy; (ehd; ntW epyk; m’;F ngrp cs;nsd;
V/tp/Mh; Fkhh; epyk; mtUf;F gzk; fl;lntz;Lk; cld; gzj;jpw;f;F Vw;ghL bra;J mDg;gt[k;
kw;wit nehpy;/ xk;/ Rg;guhaY 6/4/90"
This document was marked through P.W.1. The genuineness of this document was not
disputed. The evidence of P.W.1 reads as follows:—
“gp1/ ehd; vGjpa fojk; (gp 10) vd; khkh bgah; Kj;J Fkhurhkp U:/20.000-= ml;thd;!;
bfhLj;jij jpUg;gp th’;fpf; bfhLf;Fk; go vGjpa fojk; vd;why; rhpay;y/ vd; jha; khkd; if
khw;whf th’;fp ,Ue;jhh;/ mth; ,we;Jtpl;lhh; tHf;F brhj;jpy; kzpyh nghl;oUe;jhh;/ gp1y;
brhy;yg;gl;l vtp/Mh;/Fkhh; epyk; njhg;g[f; bfhy;iyapy; cs;sJ/ vdf;F trjp ,y;iy fpiuak; th’;f
jahuhf ,y;iy/ gp1 fPH; gpujpthjpfsplk; bfhLj;j gzj;ij jpUk;g nfl;Ls;nsd; vd;why; rhpay;y.”
In this context, the plaintiff has also elicited certain points with regard to Ex.B.1
through D.W.1. The relevant portion of D.W.1 reads as follows:—
“gp/1 ia Kj;JFkhurhkp bfhLj;jhh;/ gp1 vdf;F te;j byl;lh; my;y/ gp1 ia bfhLj;J Kj;J
Fkhurhkp gzj;ij nfl;llhh;/ 4tJ khjk; 10. 15 njjpfspy; 1990 Mk; tUl;k gzj;ij bfhLf;Fk;go
nfl;lhh;/”
13. The above recitals in Ex.B.1 and the evidence of P.W.1 and D.W.1 as referred
above, would show that the plaintiff has given up his right of equitable relief.
14. As per the agreement under dispute, plaintiff was also not having sufficient funds
to perform his part of contract. The specific averments in Ex.B.1 reads that “mtrpak; vdf;F
gzk; njitahf cs;sJ/” Similarly, P.W.1 has also confirmed this point in his evidence which
reads that “vdf;F trjpapy;iy; fpiuak; th’;f jahuhf ,y;iy ”.
15. Learned counsel for the respondent/plaintiff would contend that the above letter
viz., Ex.B.1 does not refer to suit transaction and that the defendants though possessed of the
said document not referred the same either in their reply notice or in the written
statement, and that the defendants now have set up this defence theory only for the first time
and therefore such contention has to be ignored. He has also relied on a decision reported in
Bondar Singh and others v. Nihal Singh and others, 2003(4) SCC 161, in support of his
contention.
16. Learned senior counsel for the appellants/defendants contend that the recitals in
Ex.B.1 referred to the suit transaction and that the defendants have made a specific pleading
in the written statement that the plaintiff was not possessed of sufficient funds to perform his
part of contract and that the defendants filed those documents through P.W.1 in support of
his defence and therefore the submission of the learned counsel for the respondent/plaintiff
has no merit.
17. Learned senior counsel for the appellants/defendants relied on the following
decisions to sustain his claim:
 (1) N.P.Thirugnanam v. Dr. R. Jagan Mohan Rao and others, AIR 1996 SC
116.
(2) Gopal Devi v. Kanta Bhatia, AIR 1994 Del. 349.
18. I have scanned the principle laid down in the above decisions in detail. In the
case on hand, the defendants have specifically stated in the written statement that the plaintiff
was not possessed of sufficient funds. His written pleading reads as follows:—
“The plaintiff did not have money and does not have money with him, he has filed
the suit”.
19. In support of his written pleadings, the defendants filed Ex.B.1. The genuineness
of Ex.B.1 is admitted by P.W.1. The recitals in Ex.B.1 is with reference to suit
transaction which can be culled out from the words “u’;fehjg[uk; epyj;jpw;f;F bfhLj;j gzk;
ml;thd;;!; U: 30/000-= jpUg;gp th’;fptpL’;fs;”. The suit property is also related to
Ranganathapuram land. So it is proved that the transaction referred in Ex.B.1 is related to
suit transaction only. Though P.W.1 made a bald denial at the time of the cross-
examination that the transaction is not related to suit transaction he has not explained the
same at the time of chief examination.
20. In Gopal Devi v. Kanta Bhatia, AIR 1994 Del. 349, the proposition considered in
K.S.Sundaramayyar v. K.Jagdeesan, AIR 1965 Mad 85 (DB), has been dealt with.
“There was an agreement to sell dated 31 January, 1958 respecting certain property
in Coimbatore. There was some correspondence between the parties which is not
quite relevant for our purpose. On 22 May, 1958, however, the plaintiff sent a
notice through his advocate to the defendant and the concluding portion of the
notice was as under (at page 86).
‘As there was no offer even in the telegram to deliver possession to my client of
the property as per the terms of agreement, my client was not bound to finish the
sale deed as stated in the telegram. You have thus committed default and broken
the terms of the agreement. My client has been ever ready and willing to act up to
the terms to the property by giving the title deeds for my client’s inspection and by
handing over possession to my client of the portion in your occupation, you are
bound to return the sum of Rs.4,000/- received by you as advance and also pay my
client Rs.4,000/- by way of damages.
You are therefore hereby called upon to pay my client the sum of Rs.4,000/-
received as advance and also Rs.4,000/- by way of damages, within 3 days of
receipt of this notice. Take notice that on default of compliance with this demand,
steps will be taken through Court for recovery of the said sums.’
One of the two counts on which the plaintiff was non-suited by the trial Court was
that he was not continuously ready and willing to perform the contract and he,
therefore, could not obtain relief by way of specific performance. This view was
upheld by the Madras High Court and with reference to the concluding portion of
the notice reproduced above the Court said that such a demand of return of advance
paid was quite inconsistent with the subsistence of the contracgt, and it could not,
therefore, be said that the plaintiff was ready and willing to perform his part of the
contract. The Court also noticed subsequent correspondence between the parties
and in one of the letters to the defendant the counsel for the plaintiff had said:
—
 ‘My client hereby withdraws the notice he gave you for the refund of the advance
and the compensation money as he is advised that he can obtain specific
performance itself.’ ”
21. In the above case, the agreement holder sent a notice to the other party asking to
return the advance. The case on hand is similar to that but there is a difference. The
plaintiff though not written the letter Ex.B.1 directly to the defendant, but written to the uncle
of the defendant. In fact, the plaintiff requested the uncle of the defendant to get the advance
amount from the defendant to pay it to him, as he requires the same for purchase of some
other land. The plaintiff further expressed that he was in dire need of money.
22. Taking note of the findings rendered above coupled with the facts on hand would
reveal that the plaintiff was not possessed of sufficient funds to perform his part of contract
which necessitated him to send Ex.B.1 to the uncle of the defendant for getting back the
advance amount paid by him as per the agreement which is under dispute. In this context, the
decision cited by the learned counsel for the respondent/plaintiff is not agreeable to the facts
on hand. Though the genuineness of Ex.B.1 was not disputed by the plaintiff, the lower Court
has not looked into the document in right perspective resulting in miscarriage of
justice. Had the lower Court looked into the recitals of Ex.B.1 in detail and scanned the
same, as done by me, the lower Court would not have granted equitable relief, as the
plaintiff given up his right of equitable relief and requested the defendant to return the
advance amount.
23. From the narration of the above events it is clear that the finding of the lower Court
in this regard is not in order. Therefore, the same is liable to be set aside and accordingly set
aside.
24. Point No.4:—In view of the findings rendered in Points 1 to 3, I am satisfied that
the finding of the lower Court in decreeing the suit is not in order. The lower Court erred in
holding that the plaintiff was ready and willing to perform his part of contract, though as
per Ex.B.1, plaintiff was not possessed of sufficient funds to perform his part of contract.
Therefore, I hold that plaintiff is not entitled to any relief as prayed for. Hence, this point is
answered against the plaintiff.
25. In the result, appeal is allowed. The judgment and decree of the lower Court in
decreeing the suit in O.S.No.179 of 1990 is set aside. The suit is dismissed. However, the
parties have to bear their respective costs.
Appeal allowed.

[2007 (2) TNCJ 560 (Mad)]

MADRAS HIGH COURT
BEFORE:
A. KULASEKARAN, J.
P.R. JAYARAMAN ...Petitioner
Versus
THE TAMIL NADU CIVIL SUPPLIES
CORPORATION LTD. REP. BY ITS CHAIRMAN
-CUM-MANAGING DIRECTOR AND ANOTHER ...Respondents
 [W.P. No. 13557 and 13558 of 2001, decided on 18 th July, 2007]
Constitution of India, 1950—Article 226—Fresh enquiry—After observing all
essential formalities and procedure—Direction for—Sustainability of—Nothing said
about the validity or otherwise of the earlier enquiry besides that the earlier
enquiry report was not set aside—No service rules to justify the fresh enquiry—
Earlier enquiry report was submitted on 6.8.1998 with finding that charges levelled
were not proved—Fresh enquiry directed after lapse of about three years on 6.7.2001
—Delinquent officer already retired from service much back—When charges are
vague, making the delinquent officer to suffer again by subjecting him to disciplinary
proceedings cannot be permitted—No useful purpose will be served in directing to
conduct fresh enquiry—Delay of three years not explained properly—Start of fresh
enquiry as per direction of the Government is not a valid reason—Proceedings quashed.
(Paras 7 to 13)
Case law.—AIR 1971 SC 1447; W.P.No. 40458 of 2002 decided on 29-1-2007 (Mad).
Counsel.—Mr. Chinnasamy, Senior Advocate for Mr. Haja Mohideen Gisthi in both
the writ petitions for the petitioner; Mr. G. Senthil Kumar (for R.1 in both the writ petitions),
Mr. S. Gopinathan, Additional Government Pleader (for R.2 in both the writ petitions), for
the respondents.
JUDGMENT
A. KULASEKARAN, J.—In both the writ petitions, the petitioner and the respondents
are one and the same, besides that the issue involved are identical, hence, they are disposed
of by this common order.
2. The petitioner was appointed as Assistant Engineer in Public Works Department
in the year 1965, later, he was deputed to the Tamil Nadu Civil Supplies Corporation wherein
he was absorbed as Assistant Engineer, in the year 1977, he was promoted as Assistant
Executive Engineer and subsequently, in the year 1985, he was promoted as Executive
Engineer. Two days prior to his retirement i.e., on 29.05.1998, the first respondent has
issued a charge which is challenged in W.P. No. 13557 of 2001. The charges are:—
“Charge No.1: that he failed to exercise proper control over his subordinates and
failed to extract work from them without any complaints from the public.
Charge No.2: that he has failed to see that the bills claimed by the private parties
attending to the work of TNCSC are passed smoothly without demanding any
illegal gratification from the parties.
Charge No.3: that he has failed to maintain absolute integrity, devotion to his
duties and responsibilities in discharging his duties.
Charge No.4: that he is negligent in discharging his duties and responsibilities and
thus brought disrepute to the corporation.”
3. On receipt of the charge memo, the petitioner submitted his explanation on
01.06.1998 denying the charges. Thereafter, the first respondent has appointed an enquiry
officer, who conducted enquiry and found that none of the charges levelled against him were
proved. To that effect, the Enquiry Officer has filed his report to the first respondent on
06.08.1998. Thereafter, the respondents remained silent and on 06.07.2001, by proceedings
dated 06.07.2001, the first respondent informed the petitioner that fresh enquiry would be
conducted after observing all essential formalities and procedures, which is challenged in
W.P. No. 13558 of 2001.
 4. Mr. Chinnasamy, learned senior counsel appearing for the petitioner submitted that
the charges levelled against the petitioner are flimsy, vague and not supported by any
evidence; that the Enquiry Officer, after proper consideration of the same has found that
the charges are not proved; that the proceedings dated 06.07.2001 of the first respondent for
de-novo enquiry has been issued mechanically and no reason is assigned for the same; that
there was a delay of three years from the date of filing of the report by the Enquiry Officer,
which is not properly explained; that in any event, without invalidating the earlier enquiry
directing to conduct fresh enquiry is unsustainable in law and prayed for allowing of the writ
petitions.
5. Mr. Senthil Kumar, learned standing counsel appearing for the first respondent
reiterated the contents of the counter and submitted that based on the report received from
the Directorate of Vigilance and Anti-Corruption Department dated 14.05.1998 and also the
letter received from the Secretary to Government, Food and Consumer Protection
Department dated 29.05.1998, charges memo was issued to the petitioner on 29.05.1998 and
he was allowed to retire without prejudice to initiate appropriate departmental action; that
based on the lapses pointed out by the Directorate of Vigilance and Anti-Corruption
Department, four charges were framed against the petitioner under Regulation 4 Chapter V of
the Tamil Nadu Civil Supply Employees Service Regulation, 1989 by the first respondent;
that the charge memo was served on the petitioner on 29.05.1998, an Enquiry Officer was
appointed on 16.06.1998 who submitted his report on 05.08.1998 holding that all the
charges framed against the petitioner were not proved and that the enquiry report was also
served on the petitioner on 10.08.1998 and he was called upon to submit his further
explanation; that the petitioner has accepted the enquiry findings and not offered any
explanation; that based on the Government letter dated 10.02.2000, disciplinary action was
ordered to be taken against the petitioner and the said proposal was placed before the Board
for consideration, which was also sent to the Government along with the recommendations of
the Board and requested to pass orders on the initiation of departmental action against the
petitioner vide letter dated 12.06.2000; that the Government, in their letter dated 04.06.2001
has stated that clear cut charges have not been framed and the departmental enquiry was not
conducted in the manner as per the procedure prescribed in para 109 of the Director of
Vigilance and Anti-Corruption Manual; that in pursuance of the recommendations of the
Vigilance and Anti-Corruption Department, the first respondent has ordered to conduct fresh
enquiry against the petitioner and also to take necessary departmental action against the
enquiry officer for irregularities committed by him in conducting the enquiry. It is further
pointed out by the learned standing counsel for the first respondent that in view of the fact
that charges are not framed as per the procedures established under the Rules and enquiry
was not conducted as required, fresh enquiry was rightly ordered to be conducted by the first
respondent and prayed for dismissal of the writ petition.
6. This Court carefully considered the argument of the counsel on both sides. In the
Order dated 06.07.2001 of the first respondent, it is stated thus:—
“Thiru. S. Tharmarajan, Senior General Manager (Co-ordination) and Secretary,
Head Office was appointed as Enquiry Officer to conduct domestic enquiry on
the charges levelled against Thiru. P.R. Jayaraman, Executive Engineer (now
retired) in the reference 3rd read above.
In the reference 4th read above, Government have directed to conduct enquiry after
observing all essential formalities and procedures without omission.
 Hence, Thiru. M. Vijayakumar, General Manager (Administration)/District
Revenue Officer, Head Office is appointed as enquiry officer to conduct domestic
enquiry afresh on the charges levelled against Thiru. P.R. Jayaraman, Executive
Engineer (now retired) for the irregularities pointed out in the charge memo issued
in the reference 1st read above.
Thiru. S. Ramachandran, Construction Engineer, Head Office is appointed as
Management Representative in this case.
The Enquiry Officer is requested to submit his enquiry report in duplicate within
30 days from the date of receipt of this order.
A copy of the instructions issued by the Director of Vigilance and Anti-
Corruption is also sent herewith (enclosed).”
7. In the said proceedings dated 06.07.2001, it is stated by the first respondent that the
Government has directed to conduct enquiry afresh after observing all essential
formalities and procedures and informed the petitioner that Mr. M. Vijaya Kumar,
General Manager “is appointed as Enquiry Officer to conduct domestic enquiry afresh on the
charges levelled against” the petitioner herein “for the irregularities pointed out in the charge
memo” dated 29.05.1998. It is evident that the respondents not decided to issue any fresh
charges, though it is mentioned in the counter that “clear cut charges have not been framed”
however chosen to proceed for fresh enquiry. Except the contents nothing found in the
proceedings dated 06.07.2001. The copy of the letter dated 04.06.2001 of the Government
was not served to the petitioner nor placed before this Court for consideration. In a particular
case, there has been no proper enquiry because of some serious defects has crept into the
enquiry or some important witnesses were not available at the time of the enquiry or were
not examined for some other reason, the disciplinary authority may ask the enquiry officer or
new Enquiry Officer in case previous Enquiry Officer not available to record further
evidence. In the absence of any provision, it is not open to the disciplinary authority to set
aside the previous enquiry. In this context, it is relevant to refer to the decision of the
Honourable Supreme Court reported in (K.R. Deb v. The Collector of Central Excise,
Shillong) AIR 1971 Supreme Court 1447 wherein in Para No.13, it was held thus:—
“13. It seems to us that Rule 15, on the face of it, really provides for the inquiry but
it may be possible if in a particular case there has been no proper enquiry
because some serious defect has crept into the inquiry or some important
witnesses were not available at the time of the inquiry or were not examined for
some other reason, the Disciplinary Authority may ask the Enquiry Officer to
record further evidence. But there is no provision in Rule 15 for completely setting
aside previous inquiries on the ground that the report of the Inquiring Officer or
Officers does not appeal to the Disciplinary Authority. The Disciplinary
Authority has enough powers to reconsider the evidence itself and come to its own
conclusion under Rule 9.”
8. In this case, nothing whispered in the impugned proceedings dated 06.07.2001 about
the validity or otherwise of the earlier enquiry besides that the earlier enquiry report was not
set aside and no service rule is relied on by the respondents to justify the fresh enquiry. It is
relevant to look into the decision of a Division Bench of this Court dated 29.01.2007 passed
in W.P. No. 40458 of 2002 wherein in Para No.13, it was held thus:—
 “13. It is settled proposition of law that mere irregularity in the enquiry report is
not sufficient for ordering ‘de novo’ enquiry and the sine quo non or pre-condition
required for ordering ‘de novo’ enquiry are:
(1) The authority ordering ‘de novo’ enquiry must be empowered with the
power of setting aside the enquiry report, submitted by the Enquiry
Officer and the order passed by disciplinary authority, either as appellate or
revisional authority.
(2) Further, to order ‘de novo’ enquiry, there should be patent irregularity or
illegality in the earlier enquiry report submitted by the Enquiry Officer, and
(3) Without setting aside the earlier report, based on adequate reasoning, ‘de
novo’ enquiry cannot be ordered by the authority.”
9. In this case, the respondents have admitted that clear cut charges have not been
framed, hence, when the charges are vague, making the petitioner to suffer again by
subjecting him to disciplinary proceedings cannot be permitted.
10. In this background, it is necessary to point out that the enquiry officer originally
appointed by the respondents has submitted his report dated 06.08.1998 finding that the
charges against the petitioner were not proved. The impugned proceedings dated 06.07.2001
was issued by the first respondent after lapse of about three years. The petitioner has already
retired from service, hence, no useful purpose will be served in directing to conduct fresh
enquiry. It is also to be remembered that two days prior to the superannuation of the
petitioner i.e., 31.05.1998, the charge memo dated 29.05.1998 was issued by the first
respondent.
11. As rightly pointed out by the learned senior counsel for the petitioner, the delay of
three years in issuing the impugned proceedings dated 06.07.2001 is not properly explained
by the respondents. It is also evident from the above said order that only one thing is
repeatedly mentioned that as per the instructions of the Government fresh enquiry is ordered,
which is not a valid reason.
12. In view of the above said discussions, this Court can come to only one conclusion
that the impugned proceedings dated 06.07.2001, which is the subject-matter of W.P. No.
13558 of 2001 is unsustainable in law, hence, the same is quashed. The first respondent has
admitted that clear cut charges have not been framed against the petitioner, hence, the charge
memo dated 29.05.1998 is also quashed.
13. In the result, the writ petitions are allowed. No costs. Petitions allowed.

[2007 (2) TNCJ 565 (Mad)]

MADRAS HIGH COURT
BEFORE:
S. RAJESWARAN, J.
CHINNAIYAPILLAI AND OTHERS ...Petitioners
Versus
SELVAGANESHRAJA ...Respondent
[C. Rev. Petition (NPD) Nos. 3248 to 3250 of 2000, and C. Rev. Petition (NPD) Nos. 3285
and 3286 of 2000, decided on 6th June, 2007]
 Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, Section 25—
Landlord-tenant relationship—After purchasing property from vendor, landlord
tried to vacate tenants—But they neither vacated nor paid rent—Rent Controller found
no relationship of landlord-tenant—However appellate authority on its finding
ordered eviction—Respondent should have examined vendor to prove his case—
Appellate Court wrongly shifted onus on revision petitioners—Respondent failed to
establish that he is the land-lord and revision petitioners are his tenants—C.R.P.
allowed—Order of appellate authority set aside—Order of Rent Controller restored.
(Paras 2, 4, 5, 10 and 11)
Important Point
The very foundation of an eviction petition under a rent control statute is the existence
of landlord-tenant relationship and when such relationship is found not to be established, any
further enquiry into the title of the parties is beyond the scope of the Court exercising the
jurisdiction under a rent control statute.
Case law.—2002 (1) SCC 90.
Counsel.—Mr. P.K. Bhavanantham in all C.R.Ps., for the petitioners; Mr. P.K.
Sivasubramanian in all C.R.Ps., for the respondent.
JUDGMENT
S. RAJESWARAN, J.—All these revision petitions were filed by the tenants against the
common judgment made by the rent control appellate authority on 4.4.2000 in RCA Nos.842
of 1996, 844 to 847 of 1996. The respondent herein as landlord filed RCOP Nos.2961 to
2969 of 1991 and RCOP Nos.2971 and 2977 of 1991 against various persons on the ground
of wilful default and also for the purpose of demolition and reconstruction.
2. All the respondents in RCOP Nos.2966 to 2969, RCOP Nos.2971 to 2973 of 1991
did not contest the rent control proceedings and they were dismissed by the rent controller.
Insofar as the other RCOPs., were concerned the rent controller found that there was no
landlord-tenant relationship between the respondent herein and the tenants in the RCOPs.,
and therefore dismissed the rent control proceedings. Aggrieved by the dismissal of the rent
control proceedings against some of the persons, the respondent herein filed RCA Nos.842,
844 to 848 of 1996. The appellate authority by order dated 4.4.2000 allowed all the appeals
and ordered eviction on both the grounds wilful default and demolition and reconstruction
and aggrieved by the same the tenants in RCA Nos.842/1996 and 844 to 847 of 1996 have
filed the above five civil revision petitions.
3. Heard the learned counsel for the tenants and the learned counsel for the landlord. I
have also perused the documents filed and the judgment referred to by them.
4. The case of the landlord in each of the RCOP is that all the tenants were paying a
rent of Rs.30/- per month to his predecessor-in-title Thiru A.Natarajan who was receiving the
rent from them from the year 1987. The tenants failed to pay the rent to the said A.Natarajan
resulting in negotiations and on the basis of those negotiations all the tenants agreed to
remove the roof put up by them and to vacate the premises after receiving payments. The
landlord purchased the property from the said A.Natarajan on 12.12.1988. After purchasing
the property the landlord tried to vacate the tenants, but they neither vacated premises nor
paid the rent from 17.2.88 to 31.3.91 amounting to a sum of Rs.1275/-. He further pleaded
that the premises is in a damaged condition and therefore it has to be demolished and
reconstructed. The tenants resisted the RCOPs., by contending that neither the landlord is
entitled to collect the rent from them nor he is entitled to maintain the RCOPs., as there is no
landlord-tenant relationship among them. The rent controller on the basis of the evidence let
in before him observed that the notice sent by the landlord on 6.4.1991 was not sent to
individual tenants and the previous landlord Natarajan did not inform the tenants about the
sale of the property to the present landlord. The rent controller further found that even
though the property was purchased by the present landlord on 12.2.98, he did not
inform the tenants immediately about his purchase from the previous landlord. The rent
controller has also considered the fact that the Survey Number of the property and Survey
Number found in the sale deed are not one and the same. In the absence of any proof of the
landlord-tenant relationship, the rent controller dismissed the RCOPs., against the persons
who contested the matter.
5. The appellate authority by re-appreciating the evidence found that the claim of
landlord-tenant relationship by the persons are not bona fide and they have not proved that
they put up the superstructure in which they are residing. He further found fault with the
revision petitioners for not examining the said A.Natarajan to prove their case. The appellate
authority also held that the persons could not be considered as trespassers and therefore there
is a landlord-tenant relationship and on that basis the appellate authority allowed the appeals
and ordered eviction.
6. The only question that arises for consideration is that whether it has been proved by
the respondent/landlord that there existed a landlord-tenant relationship to maintain
the rent control proceedings.
7. The very foundation of an eviction petition under a rent control statute is the
existence of landlord-tenant relationship and when such relationship is found not to be
established, any further enquiry into the title of the parties is beyond the scope of the Court
exercising the jurisdiction under a rent control statute.
8. The Supreme Court in the decision reported in 2002(1) SCC 90 (Rajendra Tiwary v.
Basudeo Prasad) held as follows:
“7. It is evident that while dealing with the suit of the plaintiffs for eviction of
the defendant from the suit premises under clauses (c) and (d) of sub-section
(1) of Section 11 of the Act, Courts including the High Court were exercising
jurisdiction under the Act which is a special enactment. The sine qua non for
granting the relief in the suit, under the Act, is that between the plaintiffs and the
defendant the relationship of “landlord and tenant” should exist. The scope of the
enquiry before the courts was limited to the question: as to whether the
grounds for eviction of the defendant have been made out under the Act. The
question of title of the parties to the suit premises is not relevant having regard to
the width of the definition of the terms “landlord” and “tenant” in clauses (f)
and (h), respectively, of Section 2 of the Act.”
“8. Inasmuch as both the trial Court as well as the first appellate Court found that
the relationship of “landlord and tenant” did not exist between the plaintiffs and the
defendant, further enquiry into the title of the parties, having regard to the nature of
the suit and jurisdiction the Court, was unwarranted.”
“16. In this case the reason for denial of the relief to the plaintiffs by the trial Court
and the appellate Court is that the very foundation of the suit, namely, the plaintiffs
are the landlords and the defendant is the tenant, has been concurrently found to be
not established. In any event inquiry into the title of the plaintiffs is beyond the
scope of the Court exercising jurisdiction under the Act. That being the position
the impugned order of the High Court remanding the case to the first appellate
 Court for recording finding on the question of title of the parties, is
unwarranted and unsustainable. Further, as pointed out above, in such a case the
provisions of Order VII, Rule 7 are not attracted. For these reasons the
aforementioned cases are of no assistance to the plaintiff. In this view of the
matter we cannot but hold that the High Court erred in remanding the case to the
first appellate Court for determination of the title of the parties to the suit premises
and for granting the decree under Order VII, Rule 7.”
“17. However, we make it clear that this judgment does not preclude the plaintiffs
from filing a suit for declaration of title and for recovery of the possession of the
suit premises against the defendant. If such a suit is filed within three months from
today we direct that the same shall be tried along with suit filed by the defendant,
Title Suit No.232 of 1983, in the Court of Sub-Judge, Siwan (Ext.11) for specific
performance of the contract against the said Kedar Nath Sinha and the plaintiffs.”
9. In the present case the rent controller found that the landlord failed to establish
the existence of landlord-tenant relationship, but the same was reversed by the appellate
authority on re-evaluating and re-appreciating the very same evidence. Normally
this Court will not re-appreciate the evidence under Section 25 of the Tamil Nadu Buildings
(Lease and Rent Control) Act, 1960 but at the same time, if the appellate authority failed to
consider the relevant document or has failed to arrive at proper findings on the basis of the
evidence and the materials available or if the findings are so perverse and unreasonable,
this Court can certainly interfere with the findings of the appellate authority.
10. In the eviction petition filed by the landlord it was specifically stated that all
the tenants who were in possession of their portions negotiated for settlement with the then
owner and vacated their respective portions and thereafter the tiled roofing was removed.
After vacating them only the land and building was conveyed to the landlord by a sale deed
dated 17.2.88. It is the further case of the landlord that after knowing that the previous owner
sold the property to the present owner, all the persons who vacated the respective
portions, reoccupied the respective portions and covered the ceiling with thatched and
temporary roofing. This is what reiterated in the notice dated 6.4.1991 marked as Ex.(P1),
which was sent to 90 tenants. Ex.P8 is the sale deed executed on 17.2.1988 by the above said
S.G.Natarajan in favour of the respondent herein. In this sale deed it was specifically stated
that the vendor has vacated the tenants in occupation and partly demolished the
superstructure and the vendor is in exclusive possession and enjoyment of the property.
From the above it is very clear that only after vacating the entire tenants/occupants, the
property was conveyed to respondent/ landlord by the previous owner. Therefore it
cannot be said that the previous tenants would be continued to be the tenants of the
respondent herein. There is absolutely no evidence let in by the respondent to prove that all
the persons who vacated the respective portions, reoccupied the very same portion and put up
the roofing. In fact it is the respondent herein who should have examined the vendor
Natarajan to prove his case and the appellate authority has wrongly shifted the onus on the
revision petitioners by finding fault with them for not examining the vendor Natarajan on
their side. Even assuming that all the persons came back and reoccupied their respective
portions and put up roofings, still it cannot be said that they are the tenants of the respondent
herein so as to maintain the rent control proceedings against them. Therefore in the light of
the evidence let in by the parties, the only inescapable conclusion that could be arrived at is
that the respondent herein has failed to establish convincingly that he is the landlord and the
revision petitioners are his tenants. If that being so, the appellate authority has failed to
consider the averments contained in the RCOP, Ex.P1 notice dated 6.4.1991 and Ex.P8 sale
deed dated 17.2.1988. Further the findings of the appellate authority is that after
preoccupying their respective portions, the occupants continued to be the tenants of the
respondent are perverse and this Court cannot shut its eyes to such finding and I am of the
considered view that it is a fit case to exercise the powers under Section 25 of the Act to set
aside the order of the appellate authority and to restore the order of the rent controller.
11. In the result, all the civil revision petitions are allowed and the order of the
appellate authority is set aside by restoring the order of the rent controller. No costs.
12. However, I make it very clear that it does not preclude the respondent herein from
filing an appropriate suit before the appropriate forum or to take any other legal proceedings
in accordance with law.
Petitions allowed.

[2007 (2) TNCJ 571 (SC)]

SUPREME COURT
BEFORE:
DR. ARIJIT PASAYAT AND LOKESHWAR SINGH PANTA, JJ.
STATE OF TRIPURA AND OTHERS ...Appellants
Versus
BINA CHOUDHARY AND OTHERS ...Respondents
[Civil Appeal No. 2362 of 2005, decided on 22 May, 2007]
nd

Civil Laws—Damages—Suit for—Claiming compensation of Rs. 1,68,000/-

alongwith interest @ 18% till return of vehicle—Suit decreed for a sum of Rs.
2,03,364/- for the period from 18.10.1993 to 31.12.1995 and thereafter @ Rs. 252/- per
day—Appeal—Vehicle handed over after repairing the vehicle and making the same in
running condition—Dismissal of—Conclusions of High Court are abrupt—No specific
issue framed regarding the income of the vehicle—Estimates made by trial Court
without any evidence—No loss of income substantiated—Original claim was of Rs.
1,68,000/-—Subsequently amended to Rs. 15,54,000/-—No document to prove the
income of the vehicle—Judgment and decree of trial Court as well as of High Court are
unsustainable—Set aside—Direction issued to pay Rs. 35,000/- towards full and final
settlement of claim.
(Paras 19 to 21)
JUDGMENT
DR. ARIJIT PASAYAT, J.—Challenge in this appeal is to the order passed by a
Division Bench of the Gauhati High Court, Agartala Bench. The High Court dismissed the
First Appeal filed by the appellants upholding the judgment and decree passed by the trial
Court. By the said judgment the trial Court decreed the suit for a sum of Rs.2,03,364/- with
12% interest per annum with effect from 18.10.1993 to 31.12.1995 and thereafter Rs.252/-
per day till the vehicle was returned.
2. Background facts are very interesting and essentially as follows:
3. A vehicle bearing registration No. TRL 2443 carrying illegal timber was seized by
the Champaknagar Range Staff. An offence report No. 3/CB-93 dated 11.06.1993 was drawn
by the Forest Beat Office, Champabari Beat Office of Champaknagar Forest Range against
the owner of said vehicle for illegally carrying, illicitly collected 57 nos. of unmarked
gamer sawn timber. The driver of the said vehicle could not produce the registration papers
of the vehicle as required under the Forest Rules for carrying forest produce and also failed to
produce any documents like G.P. and Transit Pass of Forest Department. The driver of the
vehicle Kartik Chandra Ghosh was arrested and the vehicle was seized and subsequently
brought to Champaknagar range under Teliamura Police Station and kept in the custody of
the In-Charge, Divisional Forest Protection Party, Taliamura.
4. On 21.6.1993 a show-cause notice was issued to the owner of the vehicle as to why
the said vehicle shall not be confiscated under Section 52(A)of the Indian Forest (Tripura
Second Amendment) Act, 1986 (in short the ‘Tripura Act’).
5. On 26.6.1993 the owner of the truck pleaded guilty and prayed for compounding of
the offence in response to the show-cause notice.
6. On 13.8.1993 the Chief Conservator of Forest, Tripura, directed the case to be
compounded on realization of Rs.25,000/- being valuation of the truck and Rs.5,000/- as
compensation.
7. On 27.9.1993 the vehicle was directed to be released on receipt of the payment.
On that date owner of the vehicle had prayed for re-assessment and reduction in the value of
the vehicle as the vehicle was old. In consideration of the submission made, the Chief
Conservator of Forest, Tripura by its order dated 27.9.1993 revising his previous order and
re-assessing the valuation of the truck to be Rs.10,000/- and the compensation to be
Rs.2,000/- fixed the amounts accordingly. It was directed that a written undertaking was to
be given by the owner of the truck that he shall ensure that in future the vehicle would not be
used for commission of any forest offence. Time for making payment was granted till
30.10.1993. In the night of 12/13.10.1993 the gear box of the vehicle was stolen by some
unknown miscreants from the office compound of the Range Office.
8. On 18.10.1993 the deposit was made in respect of the value and the compensation.
9. On 14.10.1993 a First Information Report (in short the ‘FIR’) was lodged to record
the theft of the gear box of the vehicle. The matter was also taken up with the forest officer
for apprehending of the culprits and recovery of the gear box. Because of the aforesaid
circumstances, the vehicle could not be returned. Owner of the vehicle-Sudhir Bhusan
Choudhary issued a legal notice on 12.1.1994. Subsequently a Money Suit was filed in May,
1994 (MS/27 of 1994) in the Court of Assistant District Judge No. 1, West Tripura, Agartala
praying for a compensation of Rs.1,68,000/- alongwith interest at the rate of 18% per annum
from 10.1.1994 till payment. In the written statement the demand was disputed and it was
submitted that the claim is without any basis.
10. On 22.7.1996 the trial Court decreed the suit for a sum of Rs.2,03,364/- for the
period from 18.10.1993 to 31.12.1995 and thereafter at the rate of Rs.252/- per day. The
defendants were also directed to return the vehicle to the plaintiff within two months from
the date of delivery of the judgment.
11. An appeal was preferred before the High Court. During the pendency of the
appeal, the vehicle was handed over after repairing the vehicle and making it in running
condition.
12. As noted above the High Court dismissed the appeal. During the pendency of the
appeal the original owner Sudhir Bhusan Choudhary expired and his legal heirs were brought
on record.
 13. The stand of the appellants is that the plaintiff himself while seeking release of the
vehicle indicated that the value of the vehicle was very less and was even less than
Rs.25,000/- as was originally fixed. Considering the age of the vehicle the valuation was
quoted Rs.10,000/-. It is inconceivable that such a vehicle would fetch income of Rs.600/-
per day as was originally claimed. Claim was for Rs.15,54,000/-. No evidence of any
income was adduced except an assertion that the owner was earning Rs.2,000/- per day. The
trial Court found that no evidence was led, yet held that the income would be roughly
Rs.600/- per day. The trial Court itself noticed that the plaintiff had claimed an exorbitant
amount for compensation as well as for interest. The vehicle was of the year, 1979. The trial
Court itself noticed that it was inconceivable that vehicle of the value of Rs.10,000/- would
fetch Rs.7,200/- per month as claimed by the appellant.
14. Thereafter on entirely conjectures and surmises the High Court held income of a
new truck would be Rs.2,000/- per day and if the vehicle was to be sold by making a
deduction of Rs.100/- per month, the vehicle was earning around Rs.600/- per day.
15. Trial Court then proceeded to examine the expenditure on hypothesis and without
any evidence being led. It was clearly stated by the trial Court that no evidence was led by
the plaintiff to substantiate the claim of loss of income. The High Court did not examine
any of these relevant factors and abruptly came to the conclusion that it would be very
difficult to assess the actual value or earning of an old vehicle. It clearly overlooked the fact
that there was no evidence led by the plaintiff to substantiate the claim of income. It was
not for the trial Court to go on a proving enquiry and fix figures that too without any basis.
16. In essence, it was submitted that the judgment and decree of the trial Court as
upheld by the High Court cannot be sustained.
17. In response, learned counsel for the respondent submitted that though it is a fact
that no concrete evidence was led yet, the High Court acted in a judicious and equitable
manner to fix the income.
18. The conclusions of the High Court are abrupt. The High Court appears to be
unmindful of the fact that it was deciding an appeal in a money suit. Only conclusion worth
noticing reads as follows:
“We find no illegality committed by the learned trial Court in making the
assessment of loss of income at Rs.252/- per day. It is correct that in such a nature
of case, the accurate assessment to ascertain the actual net income of an old
vehicle like one in hand would be very much difficult. The learned trial Court
applied a rough assessment on approximate calculation and as such we are of the
considered opinion that it is not a fit case to interfere in this appeal.”
19. There was no specific issue framed regarding the income of the vehicle. The trial
Court itself noticed that the plaintiff had made an exorbitant claim and that the claim of the
plaintiff, that the vehicle operated daily was an absurd claim. All the estimates made by
the trial Court were without any evidence. No evidence was led on the questions of loss of
income. It is further relevant to note that the original claim was Rs.1,68,000/- which was
subsequently amended to Rs.15,54,000/-. No averments were made about the income or
about the loss in the plaint. The judgment and decree of the trial Court and the impugned
order of the High Court have no legal basis. The evidence of the plaintiff No.1 is on record.
In fact PW-2, the son of PW-1 clearly stated that they have not submitted any document to
prove the income of the vehicle.
 20. In normal course, we would have set aside the impugned order and directed the
trial Court to re-hear and decide the matter afresh. Considering the long passage of time and
the limited nature of controversy, we direct that in full and final settlement of the claim, the
plaintiff shall be paid Rs.35,000/- by the defendant within two months from today. Ordered
accordingly.
21. Appeal is allowed to the aforesaid extent without any orders as to costs.
Ordered accordingly.

[2007 (2) TNCJ 575 (Mad)]

MADRAS HIGH COURT
BEFORE:
P.K. MISHRA AND R. BANUMATHI, JJ.
M/S. SREE KAMATCHI AMMAN CONSTRUCTIONSREP.
BY ITS PARTNER-CUM-POWER OF ATTORNEY HOLDER ...Appellant
Versus
THE DIVISIONAL RAILWAYS MANAGER/WORKS PALGHAT
DIVISION, SOUTHERN RAILWAY KERALA AND OTHERS ...Respondents
[O.S.A.Nos. 109 and 247 of 2005, decided on 18 th July, 2007]
(A) Arbitration and Conciliation Act, 1996—Award—Setting aside of—Only on
the one or more of the seven grounds set forth in Section 34 of Act—Not open to the
Court to re-assess the evidence to find out whether the Arbitrator has committed any
error or to decide the question of adequacy of evidence—Power of Court is restricted
—Award of the Arbitrator is ordinarily final and conclusive.
(Para 10)
(B) Arbitration and Conciliation Act, 1996—Award—Legality of—Where
fundamental terms of agreement of the parties is ignored by the Arbitrator, the
Arbitrator have exceeded his jurisdiction—Contract was for a fixed value and the
cash value was Rs. 17,32,010/-—Item No.8 of the contract stipulates no claim for
wastage of labour shall be considered—Contractor is not eligible for any amount on
account of wastage of labour—Award of Rs. 7,56,000/- on claim No.4 is unsustainable—
Set aside.
(Para 32)
(C) Arbitration and Conciliation Act, 1996—Section 34—Award—Ignoring the
rider agreement—Which was mutually agreed between contractor and Railway—Effect
of—Arbitrator being a creature of the agreement between the parties, has to act within
four corners of the agreement—Ignores the specific terms of the contract—Commits
jurisdictional error—Awarding compensation towards overstayal of work against rider
agreement—Unsustainable—Set aside.
(Para 39)
(D) Arbitration and Conciliation Act, 1996—Section 34—Award—Arbitrators
have applied their mind to the pleadings, the evidence adduced before them and the
terms of contract—View taken by the Arbitrators has to be sustained—No scope for the
Court to reappraise the matter and interfere with the award.
 (Para 54)
(E) Arbitration and Conciliation Act, 1996—Section 31(7)(a)—Interest—
Components of—To be awarded only in the absence of any specific stipulation or
prohibition in the contract—Section 31(7)(a) underlines the discretion of the Arbitral
Tribunal to award interest it deems reasonable—If Arbitrators have concluded not to
award interest—Such conclusion cannot be interfered even if such conclusion is
erroneous—Merely an error within jurisdiction—No interference warranted.
(Paras 60, 62, 64, 68, 69 and 70)
(F) Arbitration and Conciliation Act, 1996—Section 31(7) (a)—Post-award
interest—@ of 10% p.a. on awarded amount from 5.1.2002 till the date of payment—
Exercise of discretion—Not arbitrary or unreasonable calling for interference.
(Para 71)
(G) Counter-claim—No document produced to substantiate the claim—
Arbitrators rightly rejected the counter-claim—No interference warranted.
(Para 72)
Case law.—2003 (5) SCC 705; AIR 1988 SC 1791; 1986 SCC (Supp) 506; 1997 (11)
SCC 75; 1991 (4) SCC 93; AIR 1999 SC 2262; 2006 (4) SCC 445; 2006 (4) Arb.L.R. 288
(SC); AIR 2005 Cal 332; 1999 (9) SCC 283; 1991 (4) SCC 93; 1997 (4) SCC 121; 2007 (4)
MLJ 73; AIR 1968 SC 522; 1988 (3) SCC 82; 2003 (8) SCC 154; 2006 (2) Arb. L.R. 498
(SC); AIR 1989 SCC 890; 1989 (1) SCC 411; 1989 (2) SCC 347; 2001 (2) Arb. L.R. 650
(SC); 2001 (3) SCC 397; 2006 (2) Arb. L.R. 130; 2006 (4) Arb. L.R. 444; 1988 (1) SCC 418;
1992 (1) SCC 508; 2001 (2) SCC 721; 1996 (4) ALT 1046; AIR 2005 Cal 332.
Counsel.—Mr. Amalaraj S. Penikilapatti, for the appellant; Mr. V.G. Suresh Kumar
for respondent-1.
JUDGMENT
R.BANUMATHI, J.—These intra-Court Appeals are preferred against the common
order made in O.P.Nos.446/2002 and 78/2003, dismissing the original petitions filed under
Section 34 of the Arbitration and Conciliation Act.
2. Both the appeals arise out of common order. Since common points fall for
consideration, both the appeals were heard together and disposed of by this common
Judgment. For convenience, M/s.Sree Amman Constructions is referred as
Claimant/Contractor and the Railway Administration/Department is referred as ‘Railway’.
3. Brief facts which led to the arbitration are as follows :—
The Southern Railways called for tenders on 01.06.1995 in respect of the work “JTJ-
ED Section : contractor 12.54 Kms. CTR of Exg.90R/52 kg.Railways laid on CST.9/Wooden
sleepers to 11.7 density with now 60 Kg/52 Kg.Rails on PSC Sleepers with elastic
fastening between Km.219/31-231/3- U/L with PQRS equipment”. Contractor submitted its
quotation for the above said work and the same was accepted by the Railway. Formal
Agreement was entered into with the Railway bearing No.J/487/95 on 06.11.1995 with the
currency period of three months from 26.10.1995 to 25.01.1996 for execution of work in
Jolarpet-Erode Section CTR for 12.54 Km— work described above. The total value of the
work was Rs.17,32,010/-. The schedule consisted of 21 non-schedule items - items 2, 9, 12
and 19 were optional. Four extensions were given for completion of work the first extension
up to 31.03.1996 and 2nd extension up to 31.05.1996, the third extension up to 31.08.1996
and the 4th extension up to 31.03.1997. Rider Agreements were executed for the same
by the Contractor with the Railways.
 4. Case of contractor is that since the work is time bound work, the contractor made all
necessary arrangements for completing the work expeditiously. But the Railway Authorities
failed to supply the requisite permanent way materials such as concrete sleepers in time and
failed to arrange necessary traffic blocks to enable the contractor to do the work
expeditiously. Inspite of representation to the Railway authorities in person and by letters,
no tangible progress could be achieved. Since the Railway administration delayed the matter,
the contractor incurred loss and the work got delayed and the work could be completed in all
respects only in eight months time, as against the three months period stipulated in the
Agreement. The contractor further claimed that he incurred losses and the costs of materials
were also increased and field organisation was rendered idle for many days for want of
Railway materials and line blocks. As per the general conditions of the contract, the
contractor has to execute up to 25% more in quantities and accept payment at the agreement
rates. According to the claimant, for many items, it executed quantities far more than 25%
limit for which the Railway administration ought to have negotiated fresh rates with the
contractor. Insofar as optional item No.19 of the schedule of works, appended to the
agreement dated 06.11.1995, unit of measurement is spelt out in the tender documents as well
as in the agreement as “one metre length” whereas the Field officials, after completion of
work had interpreted it differently converting the work done into “tonnes” which the
contractor did not agree and the contractor has recorded their protest in the measurement
book for all items of dispute. The contractor made claims under various heads.
5. The Railway refuted the aforesaid claim contending that there was no lapse or delay
on their part either in providing materials or in arranging blocks. Delay in completing the
work entirely was with the contractor. The delay on the side of the contractor from the very
inception has actually upset the programme of work, which was planned to be done. With the
clear consent from the contractor, as envisaged under Clause 17 of the General Conditions of
Contract [in short, GCC], extension of time was granted for completion of work and the
Contractor would not be eligible for any compensation as per the agreed terms. According to
the Railway, the unit shown in item No.19 of the agreement as “metres” was purely an
oversight and a typographical error, and when there was a dispute, the contractor should have
pointed out the error while executing the agreement or at least at the time of billing.
According to the Railway, the claim of the contractor is unlawful and against various clauses
of agreement governing the contract and GCC.
6. Since dispute arose between the parties, the contractor filed O.P.No.589/1998 under
Section 11 of the Act, seeking appointment of Arbitrators. By order dated 01.04.1998, High
Court has directed the General Manager, Southern Railway to appoint Arbitrators as
provided under GCC. Contractor made claim statements under various heads. Railway filed
counter statement of facts. Under letter dated 31.07.1998, respondents 2 to 4 were appointed
as Arbitrators to go into the dispute. By award dated 14.05.1999, respondents 2 to 4 passed
an award for payment of Rs.27,24,796.40. The contractor challenged the said award in
O.P.No.915/1999. By order dated 09.01.2001, the High Court set aside the said award on the
ground that the award was a non-speaking one and contrary to clause 64(3)(b)(i) of the GCC.
The matter was again remitted back to the Arbitral Tribunal for fresh consideration and for
giving a detailed award. After the matter was remitted back to the Arbitral Tribunal, parties
adduced evidence on various items. The Tribunal considered the various claims made by the
Contractor and the Railway and passed the impugned award. The breakup of the amounts
awarded, as against individual claims are as noted below :—
No. Nature of claim/claim head claim Award (In Rs.)
1 Escalation of cost of labour 3,93,750 Nil
2 Abnormal increase in value of work 10339 Nil
3 Labour rendered idle by the
Railway Administration 17,81,200
12,81,000
4 Erroneous billing by the Dept. 39,92,435
39,92,455
5 Losses suffered owning to
over-stayal of work. 1,26,750 1,04,250
6 Refund of Security Deposit 94100 94100
7 Damages to be paid for withholding
money due to the Contractor by way of
interest at the rate of 24% which
continues to accrue at 24%
Not quantified 10% Post award

Total 54,71,805

7. Filing petitions under Section 34 of the Act, both parties challenged the award
before the learned Single Judge. The learned Single Judge rejected the contention raised by
both parties holding that the conclusions of the Arbitrators cannot be interfered with. The
learned Single Judge held that there was no erroneous billing in respect of claim No.4. The
learned Single Judge held that the rate quoted is only on “Metre basis” and not on “Tonne
Basis”. In respect of claim for interest, the learned Single Judge declined to interfere with the
rate, passed award interest and the learned Single Judge held that the contractor cannot claim
pendente lite interest.
8. Challenging the amount awarded and the judgment of the learned Single Judge, the
learned counsel for the Railway inter alia contended that the award passed by the Arbitrators
is per se illegal, since the Arbitrators travelled beyond the jurisdiction in awarding the
amount. In respect of claim Nos.3 and 5, i.e. “Labour rendered idle by the Railway
Administration and losses suffered owing to overstayal of work”, it was contended that by
awarding the amount on those heads, the Arbitrators have exceeded their jurisdiction. It was
also submitted that the Arbitrators overlooked the fact that in respect of the Claim No.4, unit
shown in agreement as per ‘each metre’ in ‘metres’ was purely an oversight and a
typographical error and the award is liable to be set aside as it is contrary to terms of contract
and patently illegal.
9. Supporting the award, learned counsel for the contractor/claimant submitted that the
award passed is well considered, supported by reasoning and cannot be held to be without
jurisdiction or that the Arbitrators travelled beyond the jurisdiction. Insofar as the appeal filed
by the contractor [O.S.A.No.109/2005], on the aspect of interest, it was contended that when
the Arbitrators had gone into all the facts and issues, the Tribunal ought to have ordered
interest since the amount remained unpaid for a long time in spite of efforts by the Arbitrators
and interest cannot be denied invoking clause 16(2) of GCC.
 10. Before we advert to various heads of claims, for proper appreciation of
contentious points, it is necessary to bear in mind the well settled principles for setting aside
the award of the Arbitrator. The award can be set aside only on the one or more of the seven
grounds set forth in Section 34 of the Arbitration Act. It is not open to the Court to re-assess
the evidence to find out whether the Arbitrator has committed any error or to decide
the question of adequacy of evidence. The award of the Arbitrator is ordinarily final and
conclusive, as long as Arbitrator has acted within his authority and according to the
principles of fair play. The Arbitrator’s adjudication is generally considered binding
between the parties, for he is a Tribunal selected by the parties and the power of the Court to
set aside the award is restricted to the instances set out in Section 34 of the Arbitration Act.
11. Section 34 of the Arbitration and Conciliation Act, 1996 makes provisions for
setting aside as well as for remission of arbitral awards. Section 34 adopts the substance of
Article 34 of United Nations Commission on International Trade Law [UNCITRAL] model
with minor contextual variations. The Arbitral award may be set aside by the Court only on
one or more of the seven grounds set forth in it. The scope of interference in Arbitral Award
has been considered in great detail by the Supreme Court in Oil and Natural Gas
Corporation Ltd. v. SAW Pipes Ltd., 2003(5) SCC 705.
12. In ONGC’s case, the Supreme Court summed up the grounds on which the award
could be set aside. The grounds are as follows :—
“74. In the result, it is held that:
(A)(1) The Court can set aside the arbitral award under Section 34(2) of the Act if
the party making the application furnishes proof that:
(i) a party was under some incapacity, or
(ii) the arbitration agreement is not valid under the law to which the parties have
subjected it or, failing any indication thereon, under the law for the time being in
force; or
(iii) the party making the application was not given proper notice of the appointment
of an Arbitrator or of the arbitral proceedings or was otherwise unable to present
his case; or
(iv) the arbitral award deals with a dispute not contemplated by or not falling within the
terms of the submission to arbitration, or it contains decisions on matters beyond
the scope of the submission to arbitration.
(2) The Court may set aside the award:
(i)(a) if the composition of the Arbitral Tribunal was not in accordance with the
agreement of the parties.
(b) failing such agreement, the composition of the Arbitral Tribunal was not in
accordance with Part I of the Act.
(ii) if the arbitral procedure was not in accordance with:
(a) the agreement of the parties, or
(b) failing such agreement, the arbitral procedure was not in accordance with Part I
of the Act.
However, exception for setting aside the award on the ground of composition of
Arbitral Tribunal or illegality of arbitral procedure is that the agreement should not be in
conflict with the provisions of Part I of the Act from which parties cannot derogate.
 (c) If the award passed by the Arbitral Tribunal is in contravention of the
provisions of the Act or any other substantive law governing the parties or is
against the terms of the contract.
(3) The award could be set aside if it is against the public policy of India,
that is to say, if it is contrary to:
(a) fundamental policy of Indian law; or
(b) the interest of India; or
(c) justice or morality; or
(d) if it is patently illegal.
(4) It could be challenged:
(a) as provided under Section 13(5); and
(b) Section 16(6) of the Act.”
Ultimately, the Supreme Court set aside the award as it was inconsistent with the terms
of the Agreement.
13. In State of Orissa v. Dandasi Sahu, AIR 1988 SC 1791, the Supreme Court has
held as follows :—
“It is well settled that when the parties choose their own Arbitrator to be the judge
in dispute between them, they cannot, when the award is good on the face of it,
object to the decision, either upon law or on facts. Therefore, when Arbitrator
commits a mistake either in law or on fact in determining the matters referred to
him where such mistake does not appear on the face of the award and the
documents appended to or incorporated so as to form part of it, the award will
neither be remitted nor set aside.”
14. In Hindustan Tea Company v. K.Sashikant Company, 1986 SCC (Supp.) 506, the
Supreme Court has held as follows :
“The award is reasoned one. The objections which have been raised against the
award are such that they cannot indeed be taken into consideration within the
limited ambit of challenge admissible under the scheme of the Arbitration Act.
Under the law, the Arbitrator is made the final arbiter of the dispute between the
parties. The award is not open to challenge on the ground that the Arbitrator has
reached a wrong conclusion or has failed to appreciate facts.”
15. Referring to 1997 (11) SCC 75 and 1991 (4) SCC 93 and other cases, in AIR 1999
SC 2262 (Grid Corporation of Orissa Ltd. and another v. Balasore Technical School), the
Supreme Court has held :
“The principle of law stated in N.Chellappan’s case, AIR 1975 SC 230, on which a
strong reliance has been placed by the learned counsel for the respondent would
make it clear that except in cases of jurisdictional errors it is not open to the Court
to interfere with an award. That proposition is unexceptionable. However, from
a reading of the decisions of this Court referred to earlier it is clear that when an
award is made plainly contrary to the terms of the contract not by misinterpretation
but which are plainly contrary to the terms of the contract would certainly lead to
an inference that there is an error apparent (sic) the award results in jurisdictional
error in the award. In such a case the Courts can certainly interfere with the award
made by the Arbitrator.”
 In the light of the well settled position of law and the facts stated above we may now
consider the various claims of the contractor.
16. Claim No.1 :— Escalation in the cost of labour-Rs.3,93,750/ and Claim No.2 :-
Abnormal increase in value of work- Rs.10,339/. Tribunal took the view that no proof was
adduced in support of Claim No.1 and hence the suit claim was rejected. Claim No.2 was
withdrawn by the Contractor. Claims No.1 and 2 are not subject matter of challenge.
17. Claim No.3 – Labour rendered idle by the Railway Administration-
Rs.17,01,200/-. The work was awarded to the claimant vide letter of acceptance dated
25.10.1995 stipulating that work should be completed within a period of three months, i.e. on
or before 25.01.1996 but was extended. The contractor has averred that owing to various
delays and defaults on the part of the Railway, work got prolonged up to eight months. The
main causes alleged are : non-availability of caution orders, delayed supply of PSC
sleepers and rail panels, failure to provide requisite traffic and power blocks, delayed supply
of grease and other materials, failure to supply in time adequate fittings for check rails. To
substantiate the plea of Railway’s failure to provide necessary traffic and power blocks, the
claimant relied upon the records of the railway.
18. The contractor further averred that level of employment of labour was at the rate of
about 150 men every day, except on Sundays and other holidays and that certain
minimum labour force was required for doing Sleeper renewal work and that the required
level of labour was always maintained at the work spot. The contractor/claimant has
averred that due to delays and defaults on the part of the Railways, claimant’s labour was
rendered idle and that the claimant paid the labour full wages for such wasted days and they
suffered severe losses on account of idling of their labour.
19. The Railways refuted the claim stating that sufficient permanent way materials
were made available before calling for tenders and no contractor’s labourers were made
idle. Railway took the stand that the contractor has expressed its willingness to start PQRS
work only during January, 1996, after lapse of two months from the date of acceptance and
the caution for the work was arranged only on 03.01.1996; but the contractor had turned
up only on 11.03.1996. It was the further case of the Railways that despite the Department’s
readiness to supply necessary blocks of adequate duration and deputing officials to work
spot, the contractor has failed to deploy men for PQRS work and thus the Railway was forced
to extend currency Agreement up to 31.03.1996. According to Railway, Administration was
forced to extend currency up to 31.08.1996 due to slow progress and the contractor’s inability
to depute sufficient labourers and thus PQRS works was delayed due to their failure and the
same was completed by 12.06.1996 only. As per item No.8 of the Special Conditions of
Contract, for Track Works, the contractor is not entitled for any compensation, for wastage of
labour due to non-availability of traffic block. After extracting the contentions of both
parties and referring to documents adduced by the parties, the arbitral Tribunal held that
the claimant/contractor is entitled to compensation on account of wastage of labour supplied
after the original period of completion in respect of Item No.8 of the Special Conditions of
Contract. Towards the labour rendered idle, the Tribunal has computed the compensation
at Rs.7,56,000/-, as against the claim of Rs.17,01,200/-.
20. Assailing the award on this claim, learned counsel for the Railways contended that
as per item No.8 of Special Conditions of Contract, the claimant is not entitled to
compensation on account of the wastage of labour and therefore the award is against the
terms of the contract and is liable to be set aside applying the ONGC’s case and 2006(4) SCC
445 [Hindustan Zinc Ltd. v. Friends Coal Corbonisation].
 21. The learned counsel for the claimant has contended that extensions were
sanctioned by railway for the reasons due to non-availability of caution for the works
and due to delay in supply of PSC Sleepers and rail panels. Drawing our attention to
contractor’s letter dated 10.07.1996, the learned counsel further submitted that the contractor
has mainly stated three reasons for extending the contract i.e., delayed block by railways;
delayed supply of grease by railways; and non-supply of check rail fittings by railways.
Therefore it was urged that even if Cl.8 of Special Conditions is to be upheld, the claimant
is always entitled for the cost of labour idling/suffered on account of railway’s primordial
failures.
22. Placing reliance upon the decisions, learned counsel for the claimant further argued
that the Supreme Court and various other Courts have consistently upheld the grant of
damages in railway contracts in spite of such deleterious clauses like Cl.8 of the Special
Conditions of the Contract. In support of his contention, the learned counsel has placed
reliance upon 2006(4) Arb.L.R.288 (SC) [Ambica Construction v. UOI (Railways)]. In the
said case before the Supreme Court, there was delay in payment of bills. Referring to
Cl.43(2) GCC, the Supreme Court has held that Cl.43(2) has been included in the GCC and
the same is meant to be a safeguard as against the frivolous claims after final
measurement and notwithstanding Cl.43(2) of GCC, the appellant was entitled to claim a
reference under the contract and the Supreme Court held that the Division Bench of the
Calcutta High Court was wrong in holding otherwise. Facts of the said case and the ratio
thereon is not applicable to the case on hand.
23. The learned counsel has also relied upon AIR 2005 Cal 332 [Union of India
(Railways) v. M/s.Pam Development] in which the interpretation of Cl.16(2) of GCC was in
question. In the said case before the Calcutta High Court, the Arbitrator has proceeded on the
reasoning that on expiry of the contract, Cl.16(2) of the agreement does not survive and in the
light of such findings, Calcutta High Court held that the Arbitrator’s power to award interest
and Section 31(7)(a) is not excluded. The Calcutta decision also has no relevance to claim
No.3.
24. As per Clause 8 of the Special Conditions of Contract for Track works, Contractor
is bound to deploy sufficient labourers whenever line block is permitted. If there is any
wastage due to non availability of traffic block, the same would not be paid since
convenience of travelling public would be the prime consideration of the Railway
administration. Item No.8 of Special conditions of contract reads as under :—
“8.Traffic blocks as required to carry out certain track works will be arranged by
the Railways. Actual availability of block would depend on flow of traffic and
there may be variations in availability of block vis-a-vis those planned. The
wastage of labour, if any, occurring on account of non-availability of block would
not be paid for. No claim on such account shall be considered”.
25. By considering the conditions of agreement, in our view, the Arbitral Tribunal
acted beyond its jurisdiction. As per Section 28(3) of the Act, in all cases, the Arbitral
Tribunal shall decide in accordance with the terms of the contract and shall take into account
the usage of the Trade applicable to the Transaction.
26. In ONGC’s case, the Supreme Court has held that the award contrary to substantive
provisions of law or provision of Law 1996 or against the terms of the contract would be
patently illegal and if it affects the rights of the parties open to interference by the Court
under Section 34(2). Noticing ONGC’s case, in 2006(4) SCC 445 [cited supra], the Supreme
Court has set aside the award observing that the award is contrary to the terms of the contract
and such award would be open to interference by Court under Section 34(2)(b)(ii) as being
patently illegal and being opposed to the public policy of India.
27. Holding that deliberate departure from contract amounts to manifest disregard of
the authority or misconduct and award also amounts to mala fide action, in 1999 (9) SCC 283
[Rajasthan State Mines and Minerals Ltd. v. Eastern Engineering Enterprises and another],
in para 45, the Supreme Court has held :—
“... (I) It is apparent that the award passed by the Arbitrator is against the
stipulations and prohibitions contained in the contract between the parties. In the
present case, there is no question of interpretation of clauses 17 and 18 as the
language of the said clauses is absolutely clear and unambiguous. Even the
contractor has admitted in his letter demanding such claims that the contract was
signed with the clear understanding that the rate under the contract was firm
and final and no escalation in rates except in case of diesel would be granted.
Hence, by ignoring the same, the Arbitrator has travelled beyond his
jurisdiction. It amounts to a deliberate departure from the contract. Hence, the
award passed by the Arbitrator is, on the face of it, illegal and in excess of his
jurisdiction which requires to be quashed and set aside”.
By awarding compensation under Claim No.3, in our view, the Arbitral Tribunal
committed jurisdictional error in overlooking the specific conditions of contract.
28. Dealing with the non-speaking award and also for the claims on the ground of
escalation of price, due to various reasons including payment of minimum rates of wages
payable to various categories of workers, the Supreme Court in Associated Engg. Co. v. State
of Andhra Pradesh, 1991(4) SCC 93, referred to the contract clauses and set aside the award
by holding :
“This conclusion is reached not by construction of the contract by merely
looking at the contract. The umpire travelled totally outside the permissible
territory and thus exceeded his jurisdiction in making the award under those
claims. This is an error going to the root of his jurisdiction”.
29. The Supreme Court has further held :
“An Arbitrator who acts in manifest disregard of the contract acts without
jurisdiction. His authority is derived from the contract and is governed by the
Arbitration Act which embodies principles derived from a specialized branch of
the law of agency. He commits misconduct if by his award he decides matters
excluded by the agreement [see Halsbury’s Laws of England, Vol.II, 4th Edn. Para
622]. A deliberate departure from contract amounts to not only manifest disregard
of his authority or a misconduct on his part, but it may tantamount to a mala fide
action. A conscious disregard of the law or the provisions of the contract
from which he has derived his authority vitiates the award”.
30. In T.N. Electricity Board v. Bridge Tunnel Constructions, 1997 (4) SCC 121, the
contractor had set up the claims raised at rates higher than the contracted rates and twice the
rate for the work done after the expiry of the contract period. For those claims, dispute was
raised and the matter was referred to the Arbitrator. The Civil Court made the award the rule
of the Court. The High Court confirmed the same. In appeal, the Supreme Court set aside the
award and while discussing various contentions, observed as under :
 “If the Arbitrator decides a dispute which is beyond the scope of the reference or
beyond the subject-matter of the reference or he makes the award disregarding
the terms of reference or the arbitration Agreement or terms of the contract, it
would be a jurisdictional error beyond the scope of reference; he cannot clothe
himself to decide conclusively that dispute as it is an error of jurisdiction which
requires to be ultimately decided by the Court”.
31. In New India Civil Erectors [P] Ltd. v. Oil and Natural Gas Corpn., 1997 (11)
SCC 75, the Supreme Court considered the contention wherein the Arbitrator has passed
an award contrary to the specific stipulation/condition contained in the agreement between
the parties. The Supreme Court observed thus :
“It is axiomatic that the Arbitrator being a creature of the agreement, must operate
within the four corners of the agreement and cannot travel beyond it. More
particularly, he cannot award any amount which is ruled out or prohibited by
the terms of the Agreement. In this case, the agreement between the parties clearly
says that in measuring the built-up area, the balcony areas should be excluded. The
Arbitrators could not have acted contrary to the said stipulation and awarded any
amount to the appellant on that account.”
32. Item No.8 clearly stipulates that no claim for wastage of labour shall be
considered. In spite of such specific conditions of contract, the Arbitrators awarded
Rs.7,56,000/- as compensation towards “Labour Rendered Idle”. When there is specific
term in contract, i.e. for Item No.8 no claim on account of wastage of labour shall be
considered, in our view, the Arbitrators have exceeded their jurisdiction. By catena of
decisions, it is well settled that where fundamental terms of agreement of the parties is
ignored by the Arbitrator, the Arbitrator was held to have exceeded his jurisdiction, even
where the jurisdiction clause itself is widely worded. That apart, the contract was for a fixed
value and the cash value was of Rs.17,32,010/-. As per Item No.8, the contractor is not
eligible for any amount on account of wastage of labour. In our considered view, award of
Rs.7,56,000/- on claim No.4 cannot be sustained and is liable to be set aside.
33. Claim No. 5 :— Losses Suffered Owing to overstayal of work.—
This claim is almost similar to claim No.3. Though the Tribunal was of the view
that claim No.5 is different from claim No.3, as it is exclusively for Supervisory Staff and
other establishment. Case of contractor/claimant is that work was awarded on 25.10.1995
with anticipated date of completion of 25.01.1996 but there were delays on the part of the
Railway Administration which hampered the progress of work. The contractor/claimant
contended that due to delays on the part of Railway, work got prolonged and the contractor
had to keep the Supervisory Staff at site, duly paying their wages and due to idlying and
under utilization of the mobilised infrastructure the contractor suffered losses for a value of
Rs.1,26,350/-.
34. Railways denied that there was any delay on their part and contended that
sufficient sleepers were arranged and the contractors have not taken any effort for
trucking out of sleepers despite the availability of enough sleepers at Bommidi Sleeper
Factory. The Railway mainly contended that necessary rider agreements have been
executed and the claimant has not raised any objection at that point of time. Referring to
pleadings and documents, tribunal arrived at the conclusion that work prolonged beyond the
original currency of contract and such time overrun has resulted in maintaining the
supervisory staff and non-utilization of infrastructure, the Tribunal computed Rs.1,04,250
payable to the claimant.
35. Assailing the award under Claim No.5, the learned counsel for the Railway
submitted that there is no explanation as to how the amount has been computed as
Rs.1,04,250/-. It was submitted that when rider agreement had been executed which provides
that the same rate clause and condition, as found in the original agreement, shall apply to the
extended period also, under such circumstances, the award under Claim No.5 is patently
illegal, warranting interference by the Court.
36. Supporting the award for losses owing to overstayal of work, the learned counsel
for the claimant contended that the works could not be completed within ninety days period
only due to railway’s failure and defaults and the contract was extended from time to time,
finally upto 31.03.1997, which resulted in enormous loss to the claimant due to idling of
under utilization of the mobilized infrastructure and establishment. The learned
counsel further urged that such losses to the claimant is to be compensated on the
universally accepted principle of computing damages, which is termed as “The Hudson’s
Law of Damages” and adopting that formula in his written submissions, the learned counsel
for the claimant has calculated damages payable under this head as Rs.7,50,537/- as per
the following calculation,—
H.O.Percentage x Contract sum x Delay period
100 Contract period
10 x Rs.17,32,010 x 13 months
Rs.7,50,537/-

100 3 months

Though the aforesaid formula adopted and the arguments advanced on behalf of the
claimant appear to be attractive, on a close scrutiny, in our view, this submission lacks
substance.
37. Though the work was time bound programme, it was extended and necessary
rider agreements have been executed by the Railway with the claimant, vide rider agreements
dated 05.01.1996, 06.05.1996, 12.07.1996 and 12.03.1997. As per the rider agreements, the
contractor and the Railway Administration have mutually agreed that the agreement shall be
varied or added in minor manner, i.e. to say “the currency of the agreement is extended up to
31.03.1996” [and other dates respectively] under clause 17(3) of GCC. It was further
mutually agreed that ‘the agreement and every rate clause and conditions in the agreement
shall continue of full effect and be binding on the respective parties’. As per the rider
agreement, the contractor and Railway administration have thus mutually agreed with every
rate clause and condition shall continue of full effect and binding on respective parties. It was
also stated that that extension of time will not result in any financial loss to the
administration.
38. There was mutual agreement between the parties that the same terms and
conditions would apply and extension of time will not result in any financial loss to the
administration. When there was such express terms, Arbitrators erred in ignoring such
clauses in rider agreements. Holding that Arbitrator being creatures of the agreement between
the parties and that he has to operate within the four corners of the agreement and if he
ignores the specific terms of the contract, it would be a question of jurisdictional error on the
face of the award, in 2007 (4) MLJ 73 [Food Corporation of India v. Chandu Construction
and another], the Supreme Court has held thus :
“11. It is trite to say that the Arbitrator being a creature of the agreement between
the parties, he has to act within the four corners of the agreement and if he ignores
the specific terms of the contract, it would be a question of jurisdictional error on
the face of the award, falling within the ambit of legal misconduct which could be
corrected by the Court. We may however, hasten to add that if the Arbitrator
commits an error in the construction of the contract, that is an error within his
jurisdiction. But, if he wanders outside the contract and deals with matters not
allotted to him, he commits a jurisdictional error. [Associated Engg. Co. v. State
of Andhra Pradesh, AIR 1992 SC 232 : 1991(4) SCC 93 and Rajasthan State
Mines and Minerals Ltd. v. Eastern Engineering Enterprises and another, AIR
1999 SC 3627 : 1999 (9) SCC 283].
In this context, a reference can usefully be made to the observations of this Court
in Alopi Parshad and sons, Ltd. v. Union of India, AIR 1960 SC 588 wherein it
was observed that the Indian Contract Act does not enable a party to a contract to
ignore the express covenants thereof, and to claim payment of consideration for
performance of the contracts at rates different from the stipulated rates, on some
vague plea of equity. The Court went on to say that in India, in the codified law of
contracts, there is nothing which justifies the view that a change of circumstances,
“completely outside the contemplation of parties” at the time when the contract
was entered into will justify a Court, while holding the parties bound by the
contract, in departing from the express terms thereof. Similarly in The Naihati Jute
Mills Ltd. v. Khyaliram Jagannath, AIR 1968 SC 522 the Supreme Court had
observed that where there is an express term, the Court cannot find, on
construction of the contract, an implied term inconsistent with such express term.
13. In Continental Construction Co. Ltd. v. State of Madhya Pradesh, AIR 1988
SC 1166 : 1988 (3) SCC 82 it was emphasized that not being a conciliator, an
Arbitrator cannot ignore the law or misapply it in order to do what he thinks is
just and reasonable. He is a Tribunal selected by the parties to decide their
disputes according to law and so is bound to follow and apply the law, and if he
does not, he can be set right by the Court provided his error appears on the face of
the award.
14. In Bharat Coking Coal Ltd. v. Amnapurna Construction, AIR 2003 SC 3660 :
2003 (8) SCC 154, while inter alia, observing that the Arbitrator cannot act
arbitrarily, irrationally, capriciously or independent of the contract, it was
observed, thus :
‘There lies a clear distinction between an error within the jurisdiction and error in
excess of jurisdiction. Thus, the role of the Arbitrator is to arbitrate within the
terms of the contract. He has no power apart from what the parties have given
him under the contract. If he has travelled beyond the contract, he would be acting
without jurisdiction, whereas if he has remained inside the parametres of the
contract, his award cannot be questioned on the ground that it contains an error
apparent on the face of the record.’
15. Therefore, it needs little emphasis that an Arbitrator derives his authority from
the contract and if he acts in disregard of the contract, he acts without jurisdiction.
A deliberate departure from contract amounts to not only manifest disregard of
 his authority or a misconduct on his part, but it may tantamount to a mala fide
action.”
39. As per the rider agreements, contractor and Railway have mutually agreed that
every rate clause and the conditions in the agreement shall continue of full effect and binding
on the respective parties. No provision was made for payment of extra to technical
supervisor. While so, ignoring the terms of agreement and the rider contractual agreement,
Tribunal has exceeded its jurisdiction in awarding Rs.1,04,250/- towards overstayal of work.
In our considered view, the award of compensation of claim No.5 is liable to be set aside.
40. Claim No.4 —Erroneous billing by Department :—Claim pertains to the work
covered under optional item under Item No.19 of the schedule of works. According to the
claimant, they had quoted a sum of Rs.225 per metre whereas according to the Railways,
rate accepted at Rs.225/- is only per metric tone and the typographical error found therein is
now sought to be taken advantage of by the claimant to unjustly enrich themselves to recover
money which is not actually due to them. Upon consideration of contentions of both parties,
the Tribunal has noted with concern that normal practice is to quantify the unit as per metric
tone only. However the Tribunal observed that there are well defined mechanisms available
at the disposal of the railway for prescribing the correct parameters of work which is
indicated in the tender at various stages of tender process and the error could have been
rectified at any appropriate time. Tribunal concluded that the contract agreement between
the parties having been materialised after an advertised date, the provisions of the contract
agreement has to be honoured in letter and spirit by both parties for item No.19. On those
findings, the Tribunal held that the amount payable to the claimant by the railway is
Rs.38,92,455/- on the following calculation :—
Total length of rails removed from track— 23,000 Metres
Locally auctioned by the Department— 5,000 metres
Balance quantity actually led by the claimant— 18,000 metres
The claimant’s rate per metre of rails to be led
to SLY Yard and stacked-vide Agreement schedule
Item 19 Rs.22/- per Mts.
Total Amount to be paid [Rs.225 x 18000]—. Rs.40,50,000/-
Amount paid to the claimant— Rs.1,57,545/-
Balance due to the claimant— Rs.38,92,455/-

41. Much contested item of work and award thereon is only in respect of item No.19,
which was optional. Description of item No.19 reads as under:—
“Loading and leading rails to nearest motorable spot by Railways dip lorry,
loading into contractor’s own lorry and leading to SLY yard and unloading Each
metre and stacking at nominated place as directed by the Engineer-in-charge with
all lead and lift etc. complete”.
42. Taking us through materials on record, the learned counsel for the Railway has
submitted that the Arbitrators having considered the material documents and such
non-consideration renders the award liable to be set aside. The learned counsel for the
Railway Mr.Sureshkumar had taken us through the proceedings of the Tender Committee in
respect of item No.19 where rate quoted by the claimant has been arrived at Rs.225/-. By
comparing the same with the agreement J355 dated 16.08.1995, which is document No.15,
produced before the Tribunal. The agreement J.355 is similar to Item No.19 of the subject
contract dealing with loading and leading of railways. In agreement J.355 rate therein has
been arrived at Rs.200/- per metric tonne. It was submitted that in respect of another
agreement entered on 06.11.1995, claimant has quoted at Rs.100 per metric tonne for similar
item of work. Drawing our attention to those earlier agreements, learned counsel for the
railways submitted that the normal practice to quantify the unit in respect of loading and
leading of rails is only per metric tonne. It was also urged that Tribunal has also found that
the normal practice is to quantify the unit as per metric tonne only and while so, the Tribunal
committed mistake in ignoring the genuine mistake/typographical error in the tender form.
43. Value of the subject-matter of the agreement is Rs.17,32,010/- with a permissible
variation of 25%. Item No.19 is optional. The learned counsel for the railways further argued
that Item No.19 being optional and at best it could be calculated at 25% of the agreement
value and that item of work will not entitle claimant to a sum of Rs.38,92,455/- which is
more than twice the agreement value itself and since the award is contrary to the terms of the
contract, such award is to be set aside as being patently illegal and opposed to Policy of
India.
44. Countering the arguments, the learned counsel for the claimant submitted that
defence of error is not permissible to railway in view of unequal power of the contracting
parties. The learned counsel for the claimant Mr.Amalraj further urged that the railway
administration had not chosen to produce manuals for standards like Railway Engineering
Code, RDSO Specifications, Railway Finance Code to substantiate its contention. It was
further urged that since the unit of “each metre” is both permissible and used as unit of
payment for transportation works in the railways, it was urged that railway must not be
permitted to take umbrage in its allegation of typographical error in the contract Agreement
that was entered into for and on behalf of the President of India.
45. We have perused the original tender documents and the relevant files. On careful
analysis of the documents, it is evident from the documents that insofar as loading and
leading of railway, normal parameter/unit adopted is only metric tonne. We are convinced
that item No.19 of the tender agreement units stated as “each metre” is only a mistake,
however the same was mechanically repeated through the tender process.
46. In fact, Arbitrators have also noted with concern that the normal unit for loading
and leading of railways is only “per metric tonne” and it was a mistake. But the Arbitrators
had ordered this claim observing that there had been a valid contract and the tender work had
gone through various process. The Arbitrators also observed that there was various checks
and measures to correct the mistake/error which has been mechanically repeated in the entire
process. The Tribunal awarded Rs.38,92,455/- payable to the claimant by making the
following concluding observations :—
Item No.19, loading and leading of released rails unit stated as ‘per metre’ and the
tender process had gone through various levels and that unit ‘per metre’ remained as such at
all levels.
Item No.19 an optional item was to be operated at the site of work. The value of the
original agreement Rs.17,32,010 does not include the value of the work under item No.19
as there is no quantity indicated being optional item; had there been definite quantity
provided in the original agreement, against item No.19, deviation in quantity arising out of
execution of the said item would have been termed as variation in the agreement quantity it
would have warranted a review. But the respondent has not carried out any such review.
 The Tribunal concluded that despite well defined mechanism available for prescribing
correct parameters of work and despite checks and balances when no such review was made
by the railway, it was held that the Tribunal cannot modify the provision of the contract
agreement which has been mutually agreed between the parties. On those reasonings, the
Arbitrators held that the contract agreement is binding upon the parties. The Arbitrators are
senior officers of the railways having fairly good experience. Such finding of fact recorded
by the Arbitrators as to the parameters of work being a finding of fact, cannot be interfered
with. If we do so, we are afraid, we would be exceeding our jurisdiction under Section 34 of
the Act.
47. Assuming for the sake of arguments that parameter of works for item No.19 is only
per metric tonne and the award of the Arbitrator is incorrect, in our view, it can only be an
error within the jurisdiction of the Arbitrators. It is not open to the Court to re-assess the
evidence to find if the arbitral Tribunal has committed any error and re-assess the evidence as
if it were a Court of appeal. The Court is precluded from reappraising the evidence and to
examine the controversy as to the unit whether it is “per metre” or “per metric tonne”.
48. Holding that intervention of Court is envisaged in a few circumstances, like in case
of fraud or bias by Arbitrators, violation of natural justice etc., in 2006(2) Arb.L.R.498(SC)
[Mc Dermott International INC. v. Burn Standard Co. Ltd. and Ors.], the Supreme Court has
held as follows :—
“55.The 1996 Act makes provision for the supervisory role of Courts, for the
review of the arbitral award only to ensure fairness. Intervention of the Court is
envisaged in few circumstances only, like, in case of fraud or bias by the
Arbitrators, violation of natural justice, etc. The Court cannot correct errors of
Arbitrators. It can only quash the award leaving the parties free to begin the
arbitration again if it is desired. So, scheme of the provision aims at keeping the
supervisory role of the Court at minimum level and this can be justified as parties
to the agreement makes a conscious decision to exclude the Court’s
jurisdiction by opting for arbitration as they prefer the expediency and finality
offered by it”.
49. In AIR 1989 SC 890 [M/s.Sudarsan Trading Co. v. The Government of Kerala &
anr.], the Supreme Court held : “Appraisement of evidence by the Arbitrator is never a
matter which the Court questions and considers. If the parties have selected their own
forum, the deciding forum must be conceded the power of appraisement to the evidence. The
Arbitrator is the sole Judge of the quality as well as the quantity of evidence and it will not be
for the Court to take upon itself the task of being a Judge on the evidence before the
Arbitrator”.
50. In Puri Construction Pvt.Ltd. v. Union of India, 1989 (1) SCC 411, the Court noted
that the Arbitrator was a highly qualified engineer, fully conversant with the nature of the
work, and, could be presumed that he had correctly evaluated the additional work done.
Therefore, when a Court is called upon to decide the objections raised by a party against an
arbitration award, the jurisdiction of the Court is limited only to the grounds set out in
Section 30 of the Arbitration Act (old Act) and it has no jurisdiction to sit in appeal and
examine the correctness of the award on merits. It is not necessary to examine the merits
of the award with reference to materials produced before the Arbitrator for upholding
the same. This is because the reviewing Court cannot sit in appeal over the view of the
Arbitrator by re-examining and re-assessing the materials.
 51. In Food Corporation of India v. Joginderpal Mohinderpal, 1989 (2) SCC 347, the
Arbitrator made a speaking award. The Supreme Court held that unless it is demonstrated
to the Court that such reasons are erroneous as such, as propositions of law, or a view which
the Arbitrator has taken is one which could not possibly be sustained on any view of the
matter, the challenge to the award of the Arbitrator cannot be sustained. Even if there is some
mistake in the construction of the contract by the Arbitrator, such a mistake is not amenable
to correction in respect of the award by the Court. The conclusion arrived at by the Arbitrator
is a plausible conclusion. The Court has no jurisdiction to interfere or modify the award in
the manner sought for by the appellant and in the manner done by the subordinate Judge.
52. In M/s.Ispat Engineering & Foundry Works v. Steel Authority of India Ltd.,
AIR 2001 SC 2516 : 2001(2) Arb.L.R.650 (SC), Their Lordships of the Apex Court observed
that needless to record that there exists a long catena of cases through which the law seems to
be rather well settled that the reappraisal of evidence by the Courts is not permissible, basing
on various other judgments of the Apex Court including Union of India v. Bungo Steel
Furniture (P) Ltd., AIR 1967 SC 1032, wherein it was held that the effect that “the Court had
no jurisdiction to investigate into the merits of the case or to examine the documentary and
oral evidence in the record for the purposes of finding out whether or not the Arbitrator has
committed an error of law. The Court as a matter of fact, cannot substitute its own evaluation
and come to the conclusion that the Arbitrator had acted contrary to the bargain between the
parties.
53. The same principle was reiterated in various other decisions cited by the
learned counsel for the claimant—2001 (3) SCC 397 (U.P.State Electricity Board v.
Searsole Chemical Ltd.) 2006(2) Arb.LR 130 (Prathyusha Associates Vizag v. Rashtriya
Ispat Nigam Ltd. & Ors.); and 2006(4) Arb.L.R.444 (Union of India [Railway] v. Deccan
Enterprises).
54. When the Arbitrators have applied their mind to the pleadings, the evidence
adduced before them and the terms of contract and held that the terms of contract
materials between the parties has to be honoured. The view taken by the Arbitrators has to be
sustained. There is no scope for the Court to reappraise the matter as if it were an appeal
to substitute our views. In such view of the matter, we find no scope for interference in the
award rendered and confirmed by the learned Single Judge.
55. Claim No.6 : Refund of Security Deposit of Rs.94,100/- :—
The claimant has prayed for refund of security deposit of Rs.94,100/- contending that
they have completed the work and maintained satisfactorily through the maintenance
period. The claimant further contended that item No.19 being optional and no quantity has
been specified in the agreement, and since there was dispute in basic unit of item No.19,
Railway cannot retain the security deposit any longer and it should be refunded to them.
The contention of Railway is that the security deposit relating to the work could be released
only after recording of final measurements and preparation of final bill and also the
contractors are required to submit their “No-Claim Certificate”. In consideration of the
contentions and documents filed by the parties, Arbitrators have directed security deposit of
Rs.94,100/- to be refunded to the claimant contractor. Order of refund of security
deposit is accepted by both parties and not a subject-matter of challenge.
56. Claim No.7 : Damages for withholding money/by way of interest @ 24% p.a.
accrued interest - Rs.15,41,890/- .—
 The contractor claimed damages by way of interest on the money due, contending that
huge money is withheld by railway and that he is unable to utilize the same on other works in
progress and that he should be paid damages at 24% p.a. on the withheld amount or @
Rs.1,27,972 p.m. from the date of completion of work to the date of final payment. Railway
refuted the claim for damages/interest contending that as per Clause 16(2) of GCC, the
contractor is not eligible for any interest on amount due to them.
57. Referring to Clause 16(2) of GCC, the Arbitrators held that the contractor is not
eligible for any interest on amounts due to them. Referring to clause 64(5), Arbitrators further
held that no interest shall be payable on whole or any part of money for any period till the
date on which the award is made and rejected the claim for damages and interest pendente
lite. However the arbitrators awarded Simple Interest at the rate of 10% p.a. on the awarded
amount from 05.01.2002 till the date of payment by the railway.
58. The learned counsel for the claimant argued at length urging that in the first
award, tribunal has awarded a sum of Rs.4,38,464.40 towards pre-award interest and awarded
compound interest @ 15% for the post-award and while so the present award denied interest
on all amounts from 31.03.1997 (demand for arbitration) to 05.12.1997 (Award date) and
also reduced 15% compound interest to a mere 10% simple interest, which according to the
learned counsel is unreasonable, causing loss and serious prejudice to the claimant. It was
further submitted that claimant being a partnership firm is in severe debts having huge debts
with State Bank of India, in addition to debts to a few private money lenders and interest
payable accumulating and since the Arbitral Tribunal has denied interest, claimant is made to
suffer increased burden for the said period whilst the railway administration enjoys
commensurate benefits of the interest element.
59. Laying emphasis upon Cl.16(2) GCC, the learned counsel for the Railway
submitted that since no interest shall be payable on the amount payable to the claimant under
the contract and since there is prohibition in the contract as per the judgment of the
Supreme Court reported in 2001(2) SCC 721 (Executive Engineer, Dhenkanal Minor
Irrigation Division, Orissa and others v. N.C.Budharaj (deceased) by Legal Representatives
and another), the claimant is not entitled to claim interest. It was further submitted that under
Section 31(7)(a) of the Act, the Tribunal is competent to award interest unless otherwise
provided by the contract.
60. The interest consists of three components : interest on pre-reference period;
post reference period : interest pendente lite; post-award interest.
61. Interest on pre-reference period:—
The question of competency of the Arbitrators to award interest for the period
before he entertains reference was examined by the Supreme Court in Executive Engineer
(Irrigation) v. Abhaduta Jena, 1988(1) SCC 418. Referring to Abhaduta Jena’s case and
Constitutional Bench in G.C.Roy’s case, 1992 (1)SCC 508, overruled the decision in
Abhaduta Jena’s case. Referring to the various case laws on the subject in 2001(2) SCC 721
(Executive Engineer, Dhankanal Minor Irrigation Division, Orissa and others v.
N.C.Bhudharaj (deceased) by LRs.), the Supreme Court observing that the forum of
arbitration created by consent of parties with or without intervention of Court being only a
substitute for conventional civil Courts, held as follows:—
“The Arbitrator appointed with or without the intervention of the Court, has
jurisdiction to award interest, on the sums found due and payable, for the pre-
 reference period, in the absence of any specific stipulation or prohibition in the
contract to claim or grant any such interest”.
62. Thus interest could be awarded only in the absence of any specific stipulation or
prohibition in the contract. In the absence of an agreement by the parties to contract, Section
31(7)(a) provides that the Arbitral Tribunal may award interest, at such rate as it deems
reasonable, on the whole or any part of the money, for the whole or any part of the period
between the date on which the cause of action arose and the date on which award was made
—pre-award period. Section 31(7)(a) underlines the discretion of the Arbitral Tribunal to
award interest it deems reasonable.
63. Learned counsel for Railway has vehemently contended that as per clause 16(2) of
GCC no interest is payable to the contractor and the Arbitrators have rightly declined interest
and the same cannot be interfered with. Clause 16(2) of the Standard General Conditions
of Contract reads as follows :—
“No interest will be payable upon the earnest money or the security deposit or
amounts payable to the contractor under the contract, but Government Securities
deposited in terms of sub-clause (1) of this clause will be repayable (with)
interest accrued thereon”.
64. The above provision makes it clear that no interest as per the terms of agreement
between the parties and no interest on the amount is due and payable by the railways.
Referring to Clause 16(2), express terms of the agreement between the parties, Arbitrators
declined to grant interest for pre-reference period.
65. The learned counsel for the claimant/contractor has submitted that
N.C.Budharaj’s case relates to the Arbitration Act, 1940 and under the Act 1996, power of
the Arbitrators to award interest is not fettered by the contract to award interest. In support
of his contention, learned Counsel placed reliance upon AIR 2005 Cal 332 (Union of India
(Railways) v. M/s.Pam Development) and 1996(4) ALT 1046 (N.G.Gunani v. Union of
India). In the Calcutta case, which arose out of railway contract, applicability of Clause 16(2)
of GCC was in question. In the said case, while construing the applicability of Clause
16(2), the Arbitrator has proceeded on the reasoning that on the expiry of contract, Clause
16(2) of the agreement does not survive and in view of such finding of the
Arbitrator, Calcutta High Court held that such finding leaves with the Arbitrator the power
conferred under Section 31(7)(a), sans exclusion provision by Agreement that prohibits
payment of interest and the Calcutta High Court has held thus :—
“40. In view of such express provisions of Section 31(7)(a), in our opinion the
Arbitrator has wide discretion to award interest. We are also of the view that
interest can be awarded by the Arbitrator for unliquidated amount also. Provided of
course, the parties have not agreed otherwise. The statute confers power on the
Arbitrator to include interest in the sum for which award is made. All it requires
under the ACA 1996 is that arbitral award is for payment of money, to empower
the Arbitrator to grant interest. The distinction between unliquidated amount and
liquidated sum for the purpose of determining the Arbitrator’s power to award
interest thus no more survives in view of such express provisions of Section
31(7)(a) of the ACA, 1996".
In the said case before the Calcutta High Court, the Arbitrator has awarded interest and
Calcutta High Court found that there was nothing illegal in such finding. The Court has
observed that if the Court is to embark upon legal enquiry as regards applicability of Clause
16(2) of GCC, Court would be required to probe into the manner in which the Arbitrator
has construed the contract and that would be beyond the scope of jurisdiction vested in the
Court under Section 34 of AC Act.
66. Similarly while construing Clause 16(2) of GCC, in 1996(4) ALT 1047 cited
supra, Andhra Pradesh High Court observing that Clause 16(2) would be a bar on the
departmental officers to allow interest, but such a provision would not restrict the power of
the Arbitrator to award interest and held thus :-—
“6. A closer analysis of the provision does not show as if the power of the
Arbitrator has been taken away to grant interest upon the determination of the
amounts payable to the contractor. What the provision means, in the context, that
where certain amounts are payable to the contractor but are not paid in time by the
department and are released after lapse of time, the department would not pay
interest for the delayed payment. It is a restriction on the power of the departmental
officers to allow interest because of late payment. But such a provision does not
restrict the power of the adjudicator to determine and direct payment of
interest.”
67. In the case before the Calcutta and Andhra Pradesh High Courts, the Arbitrators
exercised their discretion in granting interest and the Courts while confirming the same,
took the view that the Arbitrator is not denuded of his power to award interest under Clause
16(2). We are in agreement with the ratio of the above decisions. But in the said cases before
the Calcutta and Andhra Pradesh High Courts, notwithstanding interest prohibition clause,
the Arbitrator awarded interest. In such view of the matter, the Calcutta and Andhra Pradesh
High Courts have declined to interfere with the award on the ground that there is
nothing wrong or illegal in such reasoning awarding interest.
68. In the instant case before us, Arbitrators have found that the claimant is not entitled
to interest for the pre-reference period. If we are to embark upon enquiry as to the
applicability of Clause 16(2) GCC, we would be required to probe into the matter in which
the Arbitrators have construed the contract. In our opinion, while the Arbitrators have
concluded not to award interest, that conclusion cannot be interfered with. Even assuming, if
such conclusion not awarding interest is erroneous, it could only be an error within the
jurisdiction of the Arbitrators and the same cannot be interfered with. If we do so, we would
be exercising jurisdiction beyond that is vested under Section 34 of AC Act, 1996.
69. Interest pendente lite.—
Regarding interest pendente lite, in Secretary, Irrigation Department, Government
of Orissa v. G.C.Roy, 1992 (1) SCC 508, Constitutional Bench of the Supreme Court has laid
down the principle as under :—
“Where the agreement between the parties does not prohibit grant of interest
and where a party claims interest and that dispute (along with the claim for
principal amount or independently) is referred to the arbitrator, he shall have the
power to award interest pendente lite. This is for the reason that in such a case it
must be presumed that interest was an implied term of the agreement between the
parties and therefore when the parties refer all their disputes— or refer the dispute
as to interest as such—to the arbitrator, he shall have the power to award interest.
This does not mean that in every case the arbitrator should necessarily award
interest pendente lite. It is matter within his discretion to be exercised in the
light of all the facts and circumstances of the case, keeping the ends of justice in
view.”
 70. Clause 64.5 also stipulates that no interest shall be payable on the whole or any
part of the money for any period till the date on which the award is made. Awarding pendente
lite interest is a matter within the discretion of the Arbitrators. Having regard to the facts
and circumstances of the case, the Arbitrators declined to grant interest pendente lite. In our
considered view, such discretion cannot be interfered with.
71. Post-award interest :—
In the absence of any direction to the contrary in the award, Section 31(7)(b) provides
that sum of money directed to be paid by the Arbitrator shall carry interest @ 18% p.a. from
the date of award to the date of payment. To put it differently, the Arbitral Tribunal has the
discretion to give directions in the award as to the rate of interest and whether the interest
should be paid on the whole or part of the award amount. Having regard to the nature of
dispute between the parties and contentions of parties, the Arbitral Tribunal has awarded
interest @ 10% p.a. on awarded amount from 05.01.2002 till the date of payment. Exercise of
discretion by the Arbitral Tribunal in granting interest @ 10% can neither be said to be
arbitrary or unreasonable calling for interference.
72. Counter-claim of the railways :—
Railways made a counter claim for Rs.9,30,000/- against the claimant stating that even
though the railway administration provided Traffic Block on several occasions, the
claimant had not utilized the same for want of sufficient labourers for about 62 days. The
railway also claimed Rs.60,000/- for four extra blocks. Rejecting the claim of railway,
Arbitrators observed that there was no document produced by railway in support of its
claim. The Arbitrators also pointed out various extensions granted by the railway extending
the contract period. The Arbitrators also observed that the terms of contract provide for
penalty against the failure of the claimant to fulfil the contractual obligations and when
railway was free to invoke penal conditions of the contract, in the absence of any documents,
the Tribunal held that the counter claim of railway does not stand test of scrutiny and rejected
the counter-claim. Both General Conditions of Contract and Special Conditions of
Contract contain clauses provide for terms in case of failure of the contractor to fulfil the
contractual obligations. Clause 9 stipulates that the contractor shall proceed with the work
in a systematic manner so as to ensure that the stretch of work under speed restriction and its
duration are kept to a minimum. It also provides for penalty equal to 2% of the cost of
shortfall in the cumulative progress on such account shall be worked out at the end of every
month from the date of running bills and deducted from the contractor’s running bills.
Clause 24 provides for suspension of work in case of persistent non-compliance with
instructions/ directive of Engineer’s representatives. Had there been any non-compliance on
the part of the contractor, the railway could have produced the documents evidencing
invoking of such penal provision. No such document seem to have been produced before the
Arbitrators. The Arbitrators dismissed the claim on the ground that counter-claim is
unsupported by documents and the railway did not have recourse to the penalty clauses. In
our considered view, the conclusion of the Arbitrators rejecting counter claim does not
suffer from error apparent on the face of the record calling for interference.
73. To sum up : Claim No.3 (Labour rendered idle by the Railway Administration)
and Claim No.5 (losses suffered owing to over-stayal of work) are set aside and
O.S.A.No.247/2005 is partly allowed to that extent. In respect of all other claims, the award
of the Arbitrators is confirmed and O.S.A.No.109/2005 is dismissed. In the circumstances of
the case, both parties are directed to bear their respective costs.
O.S.A.No. 247/05 partly allowed,
 O.S.A. No. 109/05 dismissed.

[2007 (2) TNCJ 604 (Mad)]

MADRAS HIGH COURT
BEFORE:
F.M. IBRAHIM KALIFULLA AND S. TAMILVANAN, JJ.
N. BALA KRISHNAN AND OTHERS ETC. ...Petitioners
Versus
CHIEF ENGINEER HIGHWAYS AND RURAL WORKS
DEPARTMENT, CHENNAI AND OTHERS ETC. ...Respondents
[W.P.No. 41342 of 2002 and W.P.No. 31101 of 2005, decided on 19 July, 2007]
th

(A) Tamil Nadu State and Subordinate Service Rules—Rule 10(a)(i)—Amended

—Providing retrospective regularization—Not prohibited always—In exceptional
circumstances is permissible—Rule-making authority should ensure that exercise of
such power does not result in discriminatory treatment or in violation of any
constitutional right—When the creation of a rule by way of amendment takes note of
such safe-guards—And was intended to confer certain benefits for some deserving
categories—No fault can be found with such actions—Amended rule providing for
retrospective regularization did not create any fictitious right—But only intended to
legitimise the status of the temporary Assistant Engineers from the factual date of their
functioning—Never be held as fictitious or not a real one.
(Para 20)
(B) Constitution of India, 1950—Article 226—Tamil Nadu State and Subordinate
Service Rules—Rule 10 (a) (i)—Seniority— Determination of—Applicants already in
service as Draftsman in Grade II and III—All temporarily promoted to the post of
Junior Engineers (now Assistant Engineers) under Rule 10 (a) (i) of the Rules between
1972 and 1980 from the existing category of Draftsman II and III—Petitioners
appointed in the post of Junior Engineer (now Asst. Engineer) directly through TNPSC
only in the year 1982—Rules dealing with the case of applicants providing their
regularization from the respective dates of their temporary promotions in the post
of Junior Engineer (now Asst. Engineer) as early as on 4.5.1982—Such regularization
was confirmed by several G.O.Ms. Nos.—Such regularization based on the
conscious decision made by the State Government should be validated by bringing
forth necessary amendment in the Rules—Claim of applicants stand on a higher
footing over the claims of the petitioners who entered into the service on a
regular basis only as from the year 1982 i.e., long after the regularizations of the
services of the applicants in the post—Impugned order of Tribunal is unsustainable—
Set aside—Matter remanded for determination of seniority accordingly.
(Paras 13, 14 and 19 to 22)
Case law.—1994 Supp. (1) SCC 44; 1995 Supp. (1) SCC 572; 2006 (6) SCC 558;
1985 (Supp.) SCC 38.
Counsel.—Mr. R. Muthukumarasamy, Senior Counsel for Mr. V. Sankaranarayanan,
for the petitioners in W.P. No. 41342 of 2002 and respondents 3 to 5 in W.P.No. 31101 of
2005; Mr. R. Selvakumar, for the petitioners in W.P.No. 31101 of 2005; Mr. N. Subramanian
for Mr. Muthukannu, for the respondent 3 in W.P.No. 41342 of 2002; Mr. S. Ramasamy,
Addl. Advocate General, for the respondents 1 and 2 in both W.Ps.; Mr. Yashod Vardhan,
Senior Counsel, for the respondent 6 in W.P.No. 31101 of 2005.
JUDGMENT
F.M.IBRAHIM KALIFULLA, J.—Six of the applicants before the Tamil Nadu
Administrative Tribunal in O.A.Nos.9546 of 1997, etc. batch are the petitioners in
W.P.No.41342 of 2002. The challenge in that writ petition is to the common order of the
Tribunal dated 11.7.2002 passed in the said batch of Original Applications. Some of the
aggrieved persons in respect of the seniority list drawn by the State Government in its Special
Memo No. Nirvagam 1(3)/197876/2004-1, dated 29.4.2004, culminating in the panel of
Assistant Divisional Engineers, as approved in G.O.Ms.No.169, Highways Department,
dated 19.8.2005, are the petitioners in W.P.No.31101 of 2005.
2. The fate of W.P.No.31101 of 2005 virtually depends upon the decision to be taken
in W.P.No.41342 of 2002. Therefore, W.P.No.41342 of 2002 is considered in the first
instance before going into the merits of the claim made in W.P.No.31101 of 2005.
3. For the sake of convenience, the petitioners in W.P.No.41342 of 2002 shall
hereinafter be called as the applicants and the petitioners in W.P.No.31101 of 2005 shall
hereinafter be referred to as they are arrayed therein and the other respondents are referred to
as they are arrayed in W.P.No.41342 of 2002. The issue in both the writ petitions relate to
the seniority of the applicants vis-a-vis the petitioners in W.P.No.31101 of 2005. The
applicants were all employed in the Tamil Nadu Highways Engineering Service. 15 persons
filed the Original Applications commencing from O.A.No.9546 of 1997, etc. batch,
challenging the determination of their seniority as per the proceedings of the Secretary to
Government, Public Works Department, Chennai-9, dated 27.7.1995. To understand the
controversy involved in both the writ petitions, the background as to how the services of
certain categories of employees in the Tamil Nadu Highways Engineering Service came
to be treated right from the year 1972, is required to be briefly stated.
4. By G.O.Ms.No.1745, Public Works Department, dated 10.10.1972, the Special
Rules for the Tamil Nadu Engineering Subordinate Service came to be amended to provide
for appointment of Overseers, Head Draftsman or Civil Draftsman possessing Diploma in
Engineering and A.M.I.E. qualifications with a minimum service of three years as Junior
Engineers (now Assistant Engineers). The said Special Rules applicable to the Tamil Nadu
Engineering Subordinate Service in the Public Works Department was adopted by the
Highways Department for the Tamil Nadu Highways Engineering Service. By virtue of
the said Rule position, Draftsman who were in three different categories, namely Grade-I, II
and III on acquiring A.M.I.E. qualification, were eligible to be promoted as Junior Engineers
(now Assistant Engineers). Such position prevailed till 2nd August, 1980. The applicants
were all working as Draftsman Grade-II and III who had acquired the requisite qualification
between 1972 and 1980 and thereby, were fully eligible for being promoted as Junior
Engineers (now Assistant Engineers). On 2.8.1980, by G.O.Ms.No.1356, Public Works
Department, the position was altered, by which while directing the regularisation of such of
those Draftsman who have acquired Degree qualification in Engineering and who have so far
been appointed as Junior Engineers (now Assistant Engineers) temporarily, be regularised in
that post. It was further ruled that henceforth, the Draftsman Grade-I alone who have put in
three years of service, would be eligible for appointment as Assistant Engineers on acquiring
A.M.I.E. and B.E. Degree qualifications. On and from that date, namely 2.8.1980, the
Draftsman Grade-II and III and the Overseers were not eligible for such appointment and
they have to take their chance along with the fresh candidates for direct recruitment to the
post of Assistant Engineers in the Tamil Nadu Engineering Service.
5. By virtue of the issuance of the above said Government Orders, the position was
that the applicants and such of those Draftsman in Grade-II and III who had acquired
necessary qualifications, namely B.E/A.M.I.E. and who were appointed temporarily as Junior
Engineers (now Assistant Engineers), their services were regularised retrospectively from
10.10.1972. In effect, the applicants who were temporarily appointed as Junior Engineers on
acquisition of the required qualifications, namely B.E/A.M.I.E. on the respective dates of
such temporary appointments in between 10.10.1972 and 2.8.1980, as such came to be
regularised in the post of Junior Engineer (now Assistant Engineer).
6. By a subsequent Government Order in G.O.Ms.No.574, Transport Department,
dated 4.5.1982, the benefits as provided in G.O.Ms.No.1356, Public Works Department,
dated 2.8.1980, were “mutatis mutandis” extended to the persons working in the Tamil Nadu
Highways and Rural Works Department also retrospectively from 10.10.1972. By yet another
G.O. in G.O.Ms.No.478, Transport Department, dated 23.5.1988, the amendment to the
Special Rules for the Tamil Nadu Highways Engineering Subordinate Service came to be
made with effect from 10.10.1972 in exercise of the powers conferred on the Governor of
Tamil Nadu by the proviso to Article 309 of the Constitution of India. By virtue of the said
amendment which was brought into force with effect from 10.10.1972, the purport
intended in G.O.Ms.No.1356, P.W.D., dated 2.8.1980 and G.O.Ms.No.574, Transport
Department, dated 4.5.1982, was brought into the statutory Rules.
7. The services of the applicants came to be regularised in the post of Assistant
Engineers after the issuance of G.O.Ms.No.478, Transport Department, dated 23.5.1988.
Thereafter, it is stated that the seniority list was drawn in the year 1993 based on the above
referred to Government Orders. One other factor was that the petitioners in W.P.No.31101
of 2005 were all candidates who got selected and appointed by way of direct recruitment to
the post of Assistant Engineers. Though prior to such direct recruitment, they were working
based on their appointment under Rule 10(a)(i) of the Tamil Nadu State and Subordinate
Service Rules, their seniority was stated to have been determined based on their direct
recruitment, which came to be made in the year 1982.
8. In the above stated circumstances, the Secretary to Government, Public Works
Department, came forward with a letter dated 27.7.1995, which was impugned before the
Tribunal by the applicants. By the said communication dated 27.7.1995, it was directed
that the seniority of the applicants whose services were regularised with retrospective effect
under G.O.Ms.No.478, Transport Department, dated 23.5.1988, should be fixed below
the last candidate selected by the TNPSC prior to 23.5.1988, which virtually referred to the
petitioners in W.P.No.31101 of 2005. It was also directed therein that the anomalies in the
fixation of seniority of Assistant Engineers as on 1.1.1993 be rectified. By the order
impugned in these Writ Petitions, the Tribunal held that such a direction issued by the
Secretary to Government, P.W.D. in the impugned communication dated 27.7.1995, was
valid.
9. Assailing the said impugned order of the Tribunal, Mr.R.Muthukumarasamy,
learned senior counsel appearing for the applicants (i.e. the petitioners in W.P.No.41342 of
2002) contended that the seniority of a member of a service should be regulated only by the
Rules and cannot be done by Executive instructions. The learned senior counsel also
contended that the applicants were all in service right from their respective date of their
temporary promotion to the post of Junior Engineers (now Assistant Engineers) between
1972 and 1980, that when once such a service was regularised by G.O.Ms.No.574, Transport
Department, dated 4.5.1982 retrospectively from the respective dates of their appointment
and when such appointment in the promoted post was also governed by the amended Rules in
the Tamil Nadu Highways Engineering Subordinate Service in G.O.Ms.No.478,
Transport Department, dated 23.5.1988, it will have to be held that their entry into service in
the post of Assistant Engineers was earlier to the appointment of the petitioners in
W.P.No.31101 of 2005, who came to be appointed in the regular service by way of direct
recruitment only after 1982, and therefore, their seniority was rightly determined in the year
1993 over and above the petitioners in W.P.No.31101 of 2005, which ought not to have been
interfered with as directed by the Secretary to Government, P.W.D., in the impugned
communication dated 27.7.1995. The learned senior counsel also contended that the
consequential amendment to the Rules relating to the Tamil Nadu Highways Engineering
Subordinate Service when continued to remain in force, the first and second respondents
were bound to follow the said Rules without any deviation.
10. As against the above submissions, Mr. R.Selvakumar, learned counsel appearing
for the petitioners in W.P.No.31101 of 2005 and Mr.Yashod Vardhan, learned senior counsel
appearing for the sixth respondent-Association of Tamil Nadu Highways Engineers in
W.P.No.31101 of 2005, contended that without proving their respective date of
appointments, the applicants (the petitioners in W.P.No.41342 of 2002) cannot claim their
seniority overlooking the rightful claim of the petitioners in W.P.No.31101 of 2005. Mr.
Selvakumar, learned counsel relied upon 1985 (Supp) SCC 38 (Bhagwan Das v. I.C.A.R.) in
support of his submissions. He further contended that even the retrospective operation of the
Rules will not affect the persons who were already in service, as held by the Supreme
Court in the decision reported in 1994 Supp (1) SCC 44 (K.Narayanan v. State of
Karnataka). It was then contended by both the learned counsel that the applicants cannot be
held to have been appointed in accordance with the Rules prior to 23.5.1988 and unless their
appointments were in accordance with the Rules, which is a condition precedent for
determination of their seniority, they are not entitled to claim seniority over and above the
petitioners in W.P.No.31101 of 2005. Reliance was also placed upon the decision reported in
1995 Supp (1) SCC 572 (V.Sreenivasa Reddy v. Govt. of A.P.) in support of the above said
contentions. Our attention was also drawn to Rule 2(1) and Rule 35(aa) of the Tamil Nadu
State and Subordinate Service Rules. Mr.Yashod Vardhan, learned senior counsel also
placed reliance upon the decision of the Supreme Court reported in 2006 (6) SCC 558
(K.Madalaimuthu v. State of T.N.) to contend that the appointment made under Rule 10(a)(i)
of the Tamil Nadu State and Subordinate Service Rules, cannot be the basis for determining
the seniority.
11. Having heard the learned counsel for the respective parties, one other
Government Order which is required to be mentioned is G.O.Ms.No.807, Public Works
(HK) Department, dated 24.5.1993, by which the relevant amendment in pursuance of the
earlier G.Os. including G.O.Ms.No.574, Transport Department, dated 4.5.1982 and
G.O.Ms.No.478, Transport Department, dated 23.5.1988, came to be notified. It was notified
with specific reference to the dates from which the amendment to the relevant Rules was
brought into effect. It specifically provided that the amendment which was brought into the
Rule providing for the regularisation of Draftsman Grade-I, II and III will take effect from
10.10.1972. The amended Rule 5 of the Special Rules for the Tamil Nadu Highways
Engineering Service, relating to the category of Junior Engineers, which post was to be filled
by way of direct recruitment or recruitment by transfer, specifically recognises the
entitlement of Draftsman Grade-I to III in Category 4 (a) or 4 (b) of the Tamil Nadu
Highways Engineering Subordinate Service as one of the source by which the post of Junior
Engineer can be filled up by way of recruitment by transfer. However, in the amended
Rule 5(d) after the third proviso, a further proviso was added which made clear that after
2.8.1980, they were not eligible to be considered and that they can only aspire to become
Assistant Engineers along with the fresh candidates appointed by direct recruitment. The
amended Rule 23 by way of “saving” clause reinforces the position that nothing contained in
those Rules shall adversely affect the appointments made from the category of Draftsman
Grade I to III to the category of Junior Engineers from 10.10.1972 onwards till the date of
issuance of those amendments.
12. A conjoint reading of G.O.Ms.No.1356, Public Works Department, dated
2.8.1980, G.O.Ms.No.574, Transport Department, dated 4.5.1982, G.O.Ms.No.478,
Transport Department, dated 23.5.1988 and G.O.Ms.No.807, Public Works (HK)
Department, dated 24.5.1993, boils down to the position that the Draftsman Grade-I to III
having acquired the qualifications of B.E/A.M.I.E. between 10.10.1972 and 2.8.1980,
became eligible for being promoted as Junior Engineers (now Assistant Engineers), that
such of those Draftsman in these Grades who were temporarily promoted between
10.10.1972 and 2.8.1980, were regularised from their respective date of such temporary
appointments and that such regularisation was protected by the relevant amended Rules,
which was brought into the Rule books, though subsequently by giving retrospective effect as
from 10.10.1972.
13. To buttress the argument of the petitioners in W.P.No.31101 of 2005 as well as
the third respondent-Association of Engineers therein, insofar as it related to the
retrospectivity of the operation of the Rules and its validity, at the outset, it will have to be
stated that so far, neither the petitioners in W.P.No.31101 of 2005 nor the third respondent
therein, have made any challenge to any of the above referred to G.Os. or the amended Rules
in the manner known to law. It will have to be kept in mind that the applicants were not
appointees in the post of Junior Engineer (now Assistant Engineer), directly by way of
temporary appointment under Rule 10(a)(i) of the Tamil Nadu State and Subordinate Service
Rules. They were all already in service as Draftsman in Grade-II and III. It is also not in
dispute that they were all temporarily promoted to the post of Junior Engineers (now
Assistant Engineers) between 1972 and 1980 from the existing category of Draftsman-II and
III, whereas the petitioners in W.P.No.31101 of 2005 were all stated to have been appointed
in the post of Junior Engineers (now Assistant Engineers) under Rule 10(a)(i) of the Tamil
Nadu State and Subordinate Service Rules for the first time and who were all appointed
directly through the TNPSC only in the year 1982. Therefore, when the Rules specifically
deal with the case of the applicants providing for their regularisation from the respective
dates of their temporary promotions in the post of Junior Engineers (now Assistant
Engineers) as early as on 4.5.1982 and when such regularisation was confirmed by
G.O.Ms.No.478, Transport Department, dated 23.5.1988 and G.O.Ms.No.807, Public
Works (HK) Department, dated 24.5.1993, it will have to be held that such regularisation
based on the conscious decision made by the State Government should also be validated by
bringing forth necessary amendment to the Rules, which will certainly stand on a higher
footing over the claims of the petitioners in W.P.No.31101 of 2005, who had entered into the
service on a regular basis only as from the year 1982, i.e. long after the regularisation of the
services of the applicants in the post of Junior Engineers (now Assistant Engineers).
 14. In the light of the said factual position as regards the service of the applicants
(the petitioners in W.P.No.41342 of 2002) vis-a-vis the petitioners in W.P.No.31101 of 2005,
when the various decisions relied upon by the counsel for the petitioners in W.P.No.31101 of
2005 are examined, as far as the reliance placed upon 1985 (Supp) SCC 38 (cited supra) is
concerned, in the said decision, the Supreme Court held that in the absence of satisfactory
proof of the date of appointment of the petitioners; in that case in the Grade as Assistants;
they cannot successfully urge as to the violation of Articles 14/16 of the Constitution of
India. The said ratio as regards the proof of appointment cannot be applied to the facts of
this case, where the applicants were already in service as Draftsman Grade-II and III.
15. A reference to G.O.Ms.No.574, Transport Department, dated 4.5.1982 (paragraph
6 of that G.O.) makes it clear that the applicants were all persons whose services came
to be regularised between 1972 and 1980 from the respective dates when they were
temporarily appointed as Assistant Engineers. Such appointment of the applicants was never
challenged by anyone much less by the petitioners in W.P.No.31101 of 2005. It is not the
case of the petitioners in W.P.No.31101 of 2005 that there was no such temporary
appointment of those applicants in the post of Assistant Engineers. In fact, the third
respondent-Association of Tamil Nadu Highways Engineers who represented the petitioners
in W.P.No.31101 of 2005, did not raise any such contention as could be seen from the
impugned order of the Tribunal, where there is no such contention raised. Therefore, in our
considered opinion, it is not now open for the petitioners in W.P.No.31101 of 2005 for the
first time to question or dispute the factum of temporary appointment of the applicants in the
post of Assistant Engineers between 1972 and 1980.
16. Reliance was also placed upon the decision of the Supreme Court reported in 1994
Supp (1) SCC 44 (cited supra) for the proposition that the retrospective operation of a Rule in
violation of any Constitutional right, cannot be made. We are unable to apply the said
decision to the facts of this case. In the said judgment of the Supreme Court, when we read
the facts, we have found in paragraph 3 that the Supreme Court has illustrated how the
retrospectivity operation of a Rule causes hardship to the other group, which reads as under:
“3. .....
..... Yet when seniority list was published in 1988 the Junior Engineers
appointed by transfer in 1988 were given their seniority by giving benefit both
under Notes (2) and (3). How did it work, can be explained by taking illustration of
a Junior Engineer transferred in 1988. He has been placed at serial No.801 in the
list. He acquired the degree qualification in July 1976. Since on notional
working out the vacancy was found to exist in December 1976 his seniority
was pushed to 1976 the rule having come in force on that day and he being
qualified was deemed to have been appointed as an Assistant Engineer and
thereafter he was given weightage of four years being one-third of the service he
had rendered as Junior Engineer. He thus came to be placed as Assistant Engineer
from December 1972. Consequently a second claim petition was filed before
the Tribunal. It was dismissed as the Tribunal did not find any illegality in
placement of the diploma holder as the weightage of four years was given only
from the date the rule is deemed to have come into force namely 1976.”
As compared to the case on hand, first and foremost, while giving effect to
G.O.Ms.No.1356, Public Works Department, dated 2.8.1980, G.O.Ms.No.574, Transport
Department, dated 4.5.1982, G.O.Ms.No.478, Transport Department, dated 23.5.1988 and
G.O.Ms.No.807, Public Works (HK) Department, dated 24.5.1993, none of the provisions
contained either in these G.Os. or in the amended Rules, provided for grant of any benefit of
any notional promotion or deemed appointment. On the other hand, even if the Draftsman
Grade-II and III had acquired the qualifications of B.E/A.M.I.E. on a particular date, their
status as Junior Engineers was ascertained from the actual date when they were temporarily
appointed as Junior Engineers (now Assistant Engineers). That apart, unlike the facts
involved in the said decision of the Supreme Court, the rule did not provide for any
weightage to the detriment of the petitioners in W.P.No.31101 of 2005 in favour of the
applicants for the past services rendered as Draftsman Grade-II and III. In fact, in the light of
the facts in that case, the Supreme Court has not held that retrospective operation of a rule
can never be made. On the other hand, in the ruling of the Supreme Court, the ratio is while
the Rules operate prospectively, the retrospectivity is an exception. In paragraph 7 of
the said decision [1994 Supp (1) SCC 44], the Supreme Court has stated as under as to
the retrospectivity of the Rule:
“7. .... Rules operate prospectively. Retrospectivity is an exception. Even where
the statute permits framing of rule with retrospective effect the exercise of power
must not operate discriminately or in violation of any constitutional right so as to
affect vested right. The rule-making authority should not be permitted normally to
act in the past. The impugned rule made in 1985 permitting appointment by
transfer and making it operative from 1976 subject to availability of vacancy in
effect results in appointing a Junior Engineer in 1986 with effect from 1976.
Retrospectivity of the rules is a camouflage for appointment of Junior Engineers
from a back date. In our opinion the rule operates viciously against all those
Assistant Engineers who were appointed between 1976 to 1985.
As seen earlier there is no nexus between framing a rule permitting appointment by
transfer and making it retrospective with effect from 1976. Appointing a
person to a higher post in a different cadre in which he has never worked is
violative of constitutional guarantee of those who are working in the cadre. It is
against basic principle of recruitment to any service.”
In the case on hand, it is not as if the applicants’ service in the cadre of Draftsman
Grade-II and II was deemed to have been rendered in the cadre of Junior Engineer (now
Assistant Engineer) in order to state that the retrospective operation of the Rule in the case on
hand had no nexus to the appointment of the applicants to the post of Junior Engineers. On
the other hand, taking into account the fact that the applicants who were in the services of the
State in the cadre of Draftsman Grade-II and III and who got temporarily promoted to the
post of Junior Engineers on acquiring the required qualifications, were functioning as such in
the service and the regularisation of their appointments in that post was a justifiable one, and
therefore, the rule providing for such regularisation from the respective date of their
functioning in that post, cannot be held to be without any nexus to the appointment so made.
In our opinion, in the case on hand, it will fall under the exception category where the
retrospective operation of a rule was inevitable to the applicants and therefore, the rule
providing for such retrospective operation can never be held to be unjustified. Therefore,
reliance placed upon the said decision on behalf of the petitioners in W.P.No.31101 of 2005
cannot be accepted.
17. Reliance was also placed upon the decision of the Supreme Court reported in 1995
Supp (1) SCC 572 (cited supra). In paragraph 15, the Supreme Court has stated that the
appointment in accordance with the Rules is a condition precedent to count the
seniority and that temporary or ad-hoc or fortuitous appointments etc., are not appointments
in accordance with the Rules and the temporary service cannot be counted towards the
seniority. While relying upon the said decision, a reference was made to Rule 2(1) of the
Tamil Nadu State and Subordinate Service Rules, which states that a person is said to be
“appointed to a service” when in accordance with these Rules or in accordance with
the Rules applicable at the time, as the case may be, he discharges, for the first time the
duties of a post borne on the cadre of such service or commences the probation,
instruction or training prescribed for members thereof. In the Explanation to the said Rule
2(1), it is stated that the appointment of a person holding a post borne on the cadre of one
service to hold additional charge of a higher post in the same service or a post borne on the
cadre of another service or to discharge the current duties thereof, does not amount to
appointment to the latter service.
18. Under Rule 35(aa) of the Tamil Nadu State and Subordinate Service Rules, for
determining the seniority of a person in service, it is stipulated that it should be determined
with reference to the date on which he is appointed to the services, class, category or grade.
19. Even a combined reading of Rule 2(1) along with Rule 35(aa) of the Tamil Nadu
State and Subordinate Service Rules, does not prohibit creation of weightage by way of an
amendment to provide for regularisation of a service of a person who was already appointed
to a cadre and who came to be temporarily promoted to a higher post. It is not the case of the
petitioners in W.P.No.31101 of 2005 that the applicants (the petitioners in W.P.No.41342 of
2002) were all continuing in the post of Draftsman Grade-II and II and were all temporarily
attending the duties of a higher post, namely Junior Engineer (now Assistant Engineer) in
order to state that they were not appointed to the post of Junior Engineers. When once the
temporary appointment to the post of Junior Engineer came to be made on acquiring the
requisite qualifications, the right of the applicants in that post got crystallised by virtue of
G.Os. issued in G.O.Ms.No.1356, Public Works Department, dated 2.8.1980,
G.O.Ms.No.574, Transport Department, dated 4.5.1982, G.O.Ms.No.478, Transport
Department, dated 23.5.1988 and G.O.Ms.No.807, Public Works (HK) Department, dated
24.5.1993. Therefore, the counting of their service was from the date when they were
functioning as Junior Engineers, which functioning was temporary at the inception, which
got regularised in the year 1982 itself, i.e. on 4.5.1982 and got further reinforced by
G.O.Ms.No.478, Transport Department, dated 23.5.1988 and G.O.Ms.No.807, Public Works
(HK) Department, dated 24.5.1993. Inasmuch as the appointment of the applicants (the
petitioners in W.P.No.41342 of 2002) was in accordance with the Rules, the ratio of the
Supreme Court [in 1995 Supp (1) SCC 572] that in such cases, it is a pre-condition for
counting the seniority, is fully satisfied. For the very same reasoning, it will have to be held
that the temporary appointment of the applicants once regularised loses its temporary
phenomenon and thereby, their right as regular Junior Engineers stood established by
virtue of the issuance of the several Government Orders referred to above and as per the
amended Rules. The said decision therefore does not help the case of the petitioners in
W.P.No.31101 of 2005.
20. As far as the decision reported in 2006 (6) SCC 558 (cited supra) is concerned, the
Supreme Court dealt with a case of a Rule 10(a)(i) appointees under Tamil Nadu State and
Subordinate Service Rules, whose services came to be subsequently regularised
retrospectively, based on which the seniority came to be determined as against the subsequent
regular appointees. In the said decision, it was an admitted position that the contesting
respondents therein were admittedly appointed under Rule 10(a)(i) of the Rules. It is in the
above stated circumstances, it was held that the said appointment cannot be held to be the one
covered by Rule 2(1) of the Rules and consequently, their regularisation from the date of
their initial appointment under Rule 10(a)(i) for the purpose of counting the seniority was
not in accordance with the Rules. In the light of the facts involved in the case on hand, we
find that the case on hand is distinguishable and therefore, the said decision cannot also be
applied to the facts of this case. Moreover, when we read the judgment of the Supreme
Court reported in 1994 Supp (1) SCC 44 (cited supra) and the one reported in 2006 (6) SCC
558 (cited supra) together, we find that a statutory rule providing for retrospective
regularisation is not prohibited always and that in exceptional circumstances, it is
permissible. The rule making authority should ensure that exercise of such power does not
result in discriminatory treatment or in violation of any Constitutional right. Therefore, when
the creation of a rule by way of amendment takes note of such safeguards and was
intended to confer certain benefits for some deserving categories, no fault can be found
with such actions. Moreover, the amended rule providing for retrospective regularisation to
the applicants did not create any fictitious right but was only intended to legitimise the
status of the applicants as temporary Assistant Engineers from the factual date of their
functioning, which can never be held as fictitious or not a real one.
21. For all the above stated reasons, we find that the Tribunal’s order impugned in
W.P.No.41342 of 2002 cannot be sustained. Unfortunately, the Tribunal has not examined
the application of the various Government Orders and the ultimate amendment to the Rules
which created a legally enforceable right and an entitlement for the petitioners in
W.P.No.41342 of 2002 to claim precedence over the petitioners in W.P.No.31101 of 2005 in
the matter of seniority. We therefore set aside the impugned order of the Tribunal in the batch
of Original Applications as well as the impugned communication dated 27.7.1995 before the
Tribunal in the batch of the Original Applications, namely in Letter No.614/HK1/95, Public
Works Department, dated 27.7.1995 and direct the first and second respondents in
W.P.No.41342 of 2002 to determine the seniority of the petitioners in W.P.No.41342 of 2002
accordingly.
22. In view of our order passed in W.P.No.41342 of 2002, we do not find any scope to
interfere with the proceedings challenged in W.P.No.31101 of 2005, dated 29.4.2004,
culminating in the panel of Assistant Divisional Engineers approved in G.O.Ms.No.169,
Highways Department, dated 19.8.2005. Accordingly, W.P.No.41342 of 2002 stands allowed
and W.P.No.31101 of 2005 stands dismissed with the above observations. No costs.
Ordered accordingly.

[2007 (2) TNCJ 618 (Mad)]

MADRAS HIGH COURT
BEFORE:
S. ASHOK KUMAR, J.
M/S. SORIN BIOMEDICA CARDIO S.P.A.
REP. BY ITS FAR EAST REGIONAL BUSINESS
MANAGER MS. ANTA SCHECHTER ...Petitioner
Versus
M/S. HEART CARE INDIA CO. REP. BY ITS
PRESIDENT MARKETING MR. MANIMOZHI,
CHENNAI AND ANOTHER ...Respondents
[C.R.P. (PD) NO. 1565 of 2005 and C.M.P. No. 18152 of 2005, decided on 17 th July,
2007]
 (A) Practice and procedure—One party cannot be permitted to enrich unjustly at
the ruins of the other party based on the fraud perpetrated on the other party.
(Para 8)
(B) Civil Procedure Code, 1908—Order XXXIX, Rules 1 and 2—Interim
injunction—Made absolute—Sustainability of—Most of the cause of actions except
manufacture of the medical products at Italy and shipment from Italy arises only at
Chennai—Distribution agreement, clause 29.3 gives right to one of the parties to the
agreement to refer to any Court of competent jurisdiction including the Civil Courts in
India—Plaintiff re-shipped the balance goods to the petitioner—Petitioner has to adjust
the value of goods received by them from the L.C. given by the plaintiff—Unless
injunction is granted, the plaintiff would have lost the entire value of the balance
inventory—Court below rightly made the interim injunction absolute.
(Paras 9 and 10)
(C) Constitution of India, 1950—Article 226—Civil Procedure Code 1908—Order
XXXIX, Rules 1 and 2 and Order XLIII, Rule 1—Writ jurisdiction—Invoking of
against order making interim injunction absolute—Alternative remedy of appeal
available under Order XLIII, Rule 1, C.P.C.—Petition dismissed. (Para 10)
Case law.—AIR 1981 SC 1426; AIR 2000 SC 3166; AIR 1998 SC 634; 1988 (1) SCC
174; AIR 1998 Bom. 82; 1999 (1) All E.R. 801; 1997 (6) SCC 450; 1989 (2) SCC 163; 2000
(7) SCC 695; 2003 (4) CTC 176; 2004 (5) CTC 718; AIR 1986 Mad 161; AIR 1981 SC 1426;
AIR 1988 Del. 207.
Counsel.—Mr. A.R. Karunakaran, for the petitioner; Mr. P. Anbarasan for
respondent 1, Mrs. Geetha Rajasekar, for the respondent 2.
JUDGMENT
S. ASHOK KUMAR, J.—The above civil revision petition is filed against the fair and
decretal order dated 13.10.2005 made in I.A.No. 18317 of 2005 by which the order ad
interim injunction granted on 9.6.2005 in I.A.No.10801 of 2005 in O.S.No.3410 of 2005 was
made absolute by the learned VI Assistant Judge, City Civil Court, Chennai.
2. The brief facts of the case are as follows:—
The revision petitioner is a manufacturer of medical products having its registered
office at Milan, Italy. The petitioner does not have an office in India. The first respondent
approached the petitioner and offered to act as the petitioner’s distributor. There after
an agreement was executed by the petitioner on 30.9.2004 at Italy and by the first respondent
on 18.11.2004 at Chennai. Orders were placed by the first respondent on the petitioner at
Italy. The first respondent obtained Irrevocable Foreign Letters of Credit from the 2nd
respondent. Therefore, consignments were sent by the petitioner from Italy to the 1st
respondent at Chennai. The 1st respondent was to execute the necessary documents which
were to be presented by the petitioner’s bankers to the 2nd respondent for payment. Thus the
2nd respondent is obliged to make payments under the Letters of Credit as and when the
goods are delivered to the 1st respondent/buyer and the proper documents are presented by
the petitioner’s bank to the 2nd respondent. This is the normal import procedure. Thus the
second respondent issued two irrevocable Letters of Credit for US $ 27120 and for
US $ 15645. The goods were despatched by the petitioner from Italy to the first
respondent in Chennai. Title to the goods passed at Italy as per the said agreement dated
3.9.2004 for commercial reasons the first respondent’s performance did not satisfy the
petitioner who terminated the said agreement dated 30.9.2004 vide its letter dated
8.4.2005. After receiving the consignments of goods and admittedly selling most of the
same, the first respondent filed O.S.No.3410 of 2005 for permanent injunction restraining the
second respondent herein from making any payments to this petitioner under the aforesaid
letters of credit. The first respondent also obtained an ex parte order of injunction in
I.A.No.10801 of 2005 from the learned VI Assistant City Civil Judge, Chennai. The
petitioner also filed I.A.No. 18317 of 2005 to vacate the order of injunction. But the trial
Court made the interim injunction absolute and hence this revision.
3. Learned counsel for the revision petitioner contended that the Courts should refrain
from granting injunction restraining the performance of contractual obligations arising out of
a letters of credit or a Bank Guarantee between one bank and another as has been held by the
Apex Court in AIR 1981 SC 1426; AIR 2000 SC 3166; AIR 1998 SC 634; 1988 (1) SCC
174 and also in AIR 1998 Bom 82 and 1999 (1) All ER 801. Further, the Courts are not
concerned with their difficulties to enforce such claims; these are the risks which the
merchants take. The machinery and commitments of banks are on a different level. They
must be allowed to be honoured, free from interference by the Courts. Otherwise trust in
international commerce could be irreparably damaged. It is also contended by the
learned counsel that in the absence of pleadings of fraud or irretrievable damages by
the first respondent, the Court below has passed the injunction order as has been held by the
Supreme Court in 1997 (6) SCC 450.
4. Further the learned counsel for the revision petitioner contended that as seen
from Clause 29.2 of the contractual agreement, only the Courts in Italy alone will have
jurisdiction as Italy is where the orders were placed, where the petitioner carries on business,
where the goods were manufactured and shipped to the first respondent. Clause 29.3 of the
agreement enables the petitioner to choose the jurisdiction of the competent Court to refer the
disputes between the parties. In this respect the learned counsel relied on the judgment of the
Apex Court in 1989 (2) SCC 163 wherein their Lordships have held that the clause of ouster
of jurisdiction clause is clear unambiguous and specific, accepted notions of contract
would bind the parties and unless the absence of ad idem can be shown the other Courts
should avoid exercising jurisdiction. It is also contended that having suppressed the Clause
29 of the agreement the suit itself is liable to be struck off.
5. On the other hand, the learned counsel for the first respondent has submitted
that the injunction order passed under Order XXXIX, Rules 1 and 2 of the Code of Civil
Procedure would attract an appeal only under Order XLIII, Rule 1(r) of the CPC and no
revision under Article 227 is not maintainable as has been held by the Apex Court and
followed by this Court in the decisions reported in 2000 (7) SCC 695; 2003 (4) CTC 176 and
2004 (5) CTC 718.
6. Further, after cancellation of the distribution agreement the petitioner appointed
another distributor and the petitioner company agreed to take all the stock inventory available
with the plaintiff and sell it though their new distributor at Chennai as per Clause 22.2 (a) of
the agreement. But the new distributor refused to take the stocks from the plaintiff. At the
same time the petitioner also did not permit the plaintiff to sell the medicinal products. The
goods available with the plaintiff is worth about Rs.13,58,165/- and if the second
respondent bank is permitted to release the amount to the petitioner’s bank, the plaintiff will
not put to very great loss and hardship and it may not be able to recover the amount as the
petitioner/first defendant company is a foreign company and it has no branch office in
India. According to the learned counsel, unless the value of the goods are reshipped to the
petitioner by the first respondent/ plaintiff, and adjusted, the Foreign Letter of Credits
cannot be paid as a dispute has been raised with regard to the same by the petitioner
himself. In other words, if the FLC amount is paid without adjusting the value of the
goods remained with the plaintiff, irreparable loss and hardship will be caused to the
plaintiff. In the above circumstances the suit has been filed and having found a prima facie
case and balance of convenience is in favour of the plaintiff, interim injunction was granted
and the vacate injunction petition filed by the petitioner was also dismissed.
7. It is alleged that the petitioner with the fraudulent intention to cheat the
plaintiff and knowing fully well that the plaintiff cannot sell the goods after the
termination of the distribution agreement as the new distributor would sue him for violation
of their distribution agreement, had made the plaintiff to suffer. Hence the act of the
petitioner herein would amount to nothing but fraud. This Court in the decision reported in
AIR 1986 Madras 161 considering the Supreme Court decision reported in AIR 1981
SC 1426 held that the Courts will interfere by injunction restraining enforcement of Bank
Guarantee if there is serious question for trial and particularly fraud and misrepresentation.
In AIR 1988 Del.207 the Delhi High Court held that the Court will grant injunction if there
is a prima facie fraud, misrepresentation, suppression of material facts, violation of the
terms of the guarantees. Therefore, the grant of injunction by the competent civil Court is
valid in the eye of law.
8. It is well settled law that one party cannot be permitted to enrich unjustly at the ruin
of the other party based on the fraud perpetrated on the other party like on the plaintiff in the
present case. Further, the Apex Court in very many cases held that a party to an agreement
cannot be non suited because of forum non-convenience and the Court would look for that
forum with which the action had the most real and substantial connections in terms of
convenience or expense availability of witness, the law governing the relevant transaction
and the places where the parties resided or carried on business.
9. As far as the present case is concerned, most of the cause of actions, except
manufacture of the medical products at Italy and shipment from Italy, arise only at
Chennai and further Clause 29.3 of the Distribution Agreement gives right to one of the
parties to the agreement to refer to any Court of competent jurisdiction including the Civil
Courts in India as rightly held by the trial Court. Moreover, the plaintiff has re-shipped
the balance goods to the petitioner. Therefore the petitioner has to adjust the value of the
goods received by them from the LC given by the plaintiff. Unless the injunction is granted
by the trial Court, the plaintiff would have lost the entire value of the balance inventory as the
petitioner and the new distributor have refused to take back the balance stock. The request of
the plaintiff to the petitioner to take back the balance inventory and adjust the amount from
the LC is not considered by the petitioner.
10. In the above circumstances, I do not find any illegality or irregularity in the order
passed by the trial Court, making the interim injunction absolute. In fact the revision
petitioner has to approach the appellate Court as there is an alternative remedy of Appeal
available to it under Order XLIII, Rule 1 of the Code of Civil Procedure. In the result, the
CRP is dismissed. Consequently, connected CMP is also dismissed. No costs.
Petition dismissed.

[2007 (2) TNCJ 622 (Mad)]

MADRAS HIGH COURT
BEFORE:
R. BANUMATHI, J.
 G. JAYARAMAN ...Petitioner
Versus
DEVARAJAN ...Respondent
[C.R.P. (PD) No. 1021 of 2006, decided on 11 January, 2007]
th

(A) Constitution of India, 1950—Article 227—Writ jurisdiction—Invoking of—

Against the order condoning the delay of 563 days in filing petition to set aside the ex
parte decree on payment of costs of Rs. 750—Whether there is a proper exercise of
discretion in condoning the delay—Ex parte money decree passed on 30.6.2003—
Execution of—Service of due notice—Proceedings set ex parte —Ex parte order set aside
on the I.A.No. 284 of 2004—Knowledge of ex parte decree since 22.3.2004—No
application under Order IX, Rule 13, C.P.C. filed till 14.2.2005—No explanation of
delay in between 2.4.2004 to 14.2.2005—Delay of 563 days condoned only by observing
that in the process of dispensation of justice the parties must be given sufficient
opportunities—Practice of setting aside the ex parte decree in casual manner deprecated
—When there is a deliberate delay, the person cannot be heard to plead that substantial
justice deserve to be preferred as against technical consideration—Delay cannot be
condoned as a matter of judicial generosity—Liberal exercise of jurisdiction under
Section 5 of the Limitation Act would cause prejudice to the other side—Impugned
order unsustainable—Set aside. (Paras 8
to 17)
(B) Practice and procedure—Delay cannot be excused as a matter of judicial
generosity—Rendering substantial justice is not to cause prejudice to the other side—
Party claiming indulgence must prove that he has reasonable diligent in prosecuting the
matter.
(Para 16)
Case law.—100 L.W. 666; 2003 (1) L.W. 585.
Counsel.—Mr. D. Murthi, for the petitioner; Mr. S. Vediyappan, for the respondent.
JUDGMENT
R. BANUMATHI, J.—This civil revision petition is directed against the order dated
12.04.2006 passed by the Additional District Munsif, Kancheepuram in I.A.No.71 of 2006 in
O.S.No.204 of 1998, condoning the delay of 563 days in filing the petition to set aside the ex
parte decree on payment of costs of Rs.750/-. The plaintiff is the revision petitioner.
2. Brief facts are as follows:—Revision petitioner/plaintiff has filed the suit against the
respondent/defendant in O.S.No.204 of 1998 on the file of District Munsif Court,
Kancheepuram for recovery of a sum of Rs.68,800/-. Suit summons served to the defendant
and suit was posted for appearance of the defendant on 20.11.1998. On 20.11.1998, the
defendant was set ex parte. The respondent/ defendant had filed I.A.No.858 of 1998
under Order IX, Rule 7, C.P.C to set aside the ex parte order and the same was allowed on
27.11.1998. The suit was posted for filing of the written statement on various dates from
27.11.1998 to 30.06.2003. Since the defendant has not filed the written statement for nearly
four years, on 30.06.2003, ex parte decree was passed.
3. The plaintiff/decree holder filed E.P.No.41 of 2004 for recovery of the amount
by arrest of the defendant. The case was posted for hearing on 22.03.2004. The
respondent/defendant did not appear before the Court and he was set ex parte on 22.03.2004.
On application filed by respondent/defendant, ex parte order of arrest was set aside. Again,
the respondent/defendant was taking time for filing counter in the execution proceedings. At
that stage, the respondent has filed I.A.No. 71 of 2005 under Section 5 of the Limitation Act
to condone the delay of 563 days in filing the application to set aside the ex parte decree
dated 30.06.2003.
4. The revision petitioner/plaintiff resisted the application by filing elaborate counter
statement narrating the dates and events.
5. Observing that though the defendant has not properly explained the delay, to
afford an opportunity to advance substantial justice, the trial Court condoned the delay and
allowed the application, which is challenged in this revision petition.
6. Learned counsel for the revision petitioner/plaintiff has contended that despite
opportunity given to the defendant for nearly four years, the defendant had not chosen to file
the written statement. Taking me through the dates and events, learned counsel for the
petitioner further submitted that it would only show that the defendant is filing applications
one after another only with a view to drag on the proceedings. It was submitted that in
condoning the delay of 563 days by the lower Court, there is improper exercise of
discretion and the impugned order is to be set aside.
7. Submitting that the respondent/defendant is a Government servant and was
transferred from one place to another and hence, he could not contest the matter, learned
counsel for the respondent has submitted that with a view to afford opportunity to the
respondent/defendant and to do substantial justice the Court below has rightly condoned the
delay and there is no reason calling for interference.
8. In condoning the delay of 563 days in filing the application to set aside the ex parte
decree, whether there is proper exercise of discretion is the only point arising for
consideration in this revision.
9. Of course, it is the consistent view taken by the Supreme Court in various decisions
that “sufficient cause” appearing in Section 5 of the Limitation Act should be liberally
considered and the Court should be slow in shutting the door of justice to a litigant on the
score of limitation. When the reason for the delay is properly explained, the Court is to adopt
a pragmatic approach to condone the delay when there is no negligence, inaction or want of
bona fide on the part of the applicant.
10. At the same time, the discretion must not be exercised in any arbitrary or vague or
fanciful manner; but must be exercised like any other judicial discretion with vigilance and
circumspection. Delay cannot be condoned as a matter of judicial generosity. Where delay
could have been avoided by due care and caution, the Court may not exercise the discretion
to condone the delay.
11. The true test is whether the applicant has acted with due diligence. From the dates
and events narrated above, it is seen that the defendant was set ex parte on 20.11.1998. Only
on application filed under Order IX, Rule 7 of C.P.C in I.A.No.858 of 1998, ex parte order
was set aside. Thereafter, time was granted to the defendant for nearly four years to file the
written statement, but the defendant had not chosen to file the written statement and ex parte
decree was passed on 30.06.2003.
12. After execution petition was filed for arrest of defendant, again after service of
notice, the defendant did not appear in the Court and hence, he was set ex parte in the
execution proceedings. The defendant had filed I.A.No.284 of 2004 under Order XXI, Rule
106, C.P.C to set aside the ex parte order and the same was allowed. The
respondent/defendant was taking time for filing counter in the execution proceedings and
only at that stage, I.A.No.71 of 2005 was filed to condone the delay of 563 days. E.A.No.284
of 2004 was filed by the respondent/defendant under Order XXI, Rule 106, C.P.C way back
on 22.03.2004. He had knowledge of the ex parte decree even at that time. But, at that stage,
the defendant had not chosen to file any application under Order IX, Rule 13, C.P.C. He was
gaining time to file the counter statement. Even then, no steps had been taken under Order
IX, Rule 13, C.P.C. No acceptable explanation is forthcoming for not taking steps. In the
impugned order, even the lower Court has observed that the defendant had not given any
proper explanation for not filing the petition from 02.04.2004 to 14.02.2005. However, the
lower Court has condoned the delay observing that in the process of dispensation of justice,
the parties must be given sufficient opportunities.
13. Deprecating the practice of setting aside the ex parte decrees in casual manner,
in the decision reported in Srinivasalu v. Krishnammal (100 L.W. 666), Chief Justice,
M.N.Chandurkar, J., has held as under:—
“...The present order allowing the petition for condonation of delay in filing the
petition for setting aside the ex parte decree appears to be obviously the result of a
very liberal attitude and casual manner in which ex parte decrees are being set
aside. I had two occasions earlier to refer to the casual manner in which ex parte
decrees are passed and they are subsequently set aside. The present case is a clear
illustration which justifies the above observations. It is not possible to absolve the
Courts from the blame for the tendency which is growing in the litigants to take
ex parte decrees very casually and at leisure make applications for setting aside
them on bald and general averments which are rarely scrutinised, with care which
such applications and affidavits deserve, having regard to the stringent
provisions of Section 5 of the Limitation Act. In my view, the learned Judge was
clearly in error in condoning the delay in filing the petition for setting aside the ex
parte decree. The order of the learned Judge, is, therefore, set aside. ....”
14. As rightly pointed out by the learned counsel for the petitioner, while
considering the plea relating to affording an opportunity to advance substantial justice,
the right accrued to the other side ought to be kept in view. When there is deliberate delay,
the respondent herein cannot be heard to plead that substantial justice deserve to be
preferred as against technical consideration.
15. In the decision reported in Sundar Gnanaolivu rep. By his Power of Attorney Agent
v. Rajendran Gnanavolivy rep. By its Power of Attorney Agent, 2003 (1) L.W. 585, a
Division Bench of this Court has held as under:-
“...14.A. In yet another Division Bench Judgment reported in 1990 (1) LLN 457
(Tamil Nadu Mercantile Bank Ltd., Tuticorin v. Appellate Authority under the
Tamil Nadu Shops and Establishments Act, Madurai and another), the
principles relating to rule of limitation have been discussed and the legal position
has been stated by His Lordship Mr.Justice M.Srinivasan as he then was, in
paragraphs 14 and 17 which read as under:-
14....... If a litigant chooses to approach the Court long after the time prescribed
under the relevant provisions of the law, he cannot say that no prejudice would be
caused to the other side by the delay being condoned. The other side would have in
all probability destroyed the records thinking that the records would not be relevant
as there was no further proceeding in the matter. Hence, to view a matter of
condonation of delay with a presupposition that no prejudice will be caused by the
condonation of delay to the respondent in that application will be fallacious. In our
view, each case has to be decided on the facts and circumstances of the case.
 Length of the delay is a relevant matter to be taken into account while considering
whether the delay should be condoned or not. It is not open to any litigant to fix
his own period of limitation for instituting proceedings for which law has
prescribed periods of limitation.
17..... Once it is held that a party has lost his right to have the matter considered
on merits because of his own inaction for a long time, it cannot be presumed to be
non-deliberate delay, and in such circumstances of the case, he cannot be heard to
plead that substantial justice deserved to be preferred as against technical
considerations. We are of the view that the question of limitation is not merely a
technical consideration. Rules of limitation are based on principles of sound public
policy and principles of equity. Is a litigant liable to have a Damocles’ sword
hanging over his head indefinitely for a period to be determined at the whims and
fancies of the opponent?....”
16. As stated earlier, delay cannot be excused as a matter of judicial generosity.
Rendering substantial justice is not to cause prejudice to the opposite party. Money suit was
filed way back in 1998 and revision petitioner/plaintiff has been pursuing the matter for
nearly 7 to 8 years. The matter could not reach finality because of one application or another
filed by the respondent/defendant. The party claiming indulgence must prove that he has
reasonable diligent in prosecuting the matter. This test for condoning the delay is not
satisfied in this case. Liberal exercise of jurisdiction under Section 5 of the Act would cause
prejudice to the plaintiff/decree holder, who has been pursuing the money suit for quite a
long time. In condoning the delay, there is improper exercise of discretion and therefore,
the impugned order cannot be sustained.
17. In the result, the impugned order dated 12.04.2006 passed by the Additional
District Munsif, Kancheepuram in I.A.No.71 of 2006 in O.S.No.204 of 1998 is set aside and
this civil revision petition is allowed. No costs.
The learned counsel for the revision petitioners contended that to advance substantial
justice, the revision petitioners ought to be given an opportunity. While considering this plea,
the right accrued to the other side ought to be kept in view. When there is deliberate delay,
the Petitioners cannot be heard to plead that substantial justice deserve to be preferred as
against technical consideration.
Petition allowed.

[2007 (2) TNCJ 628 (SC)]

SUPREME COURT
BEFORE:
DR. ARIJIT PASAYAT AND LOKESHWAR SINGH PANTA, JJ.
COMMISSIONER OF CUSTOMS, NEW DELHI ...Appellant
Versus
M/S. BROOKS INTERNATIONAL AND OTHERS ...Respondents
[Civil Appeal Nos. 4559-4561 of 2002 with Civil Appeal Nos. 140-143 of 2004, decided on
24th May, 2007]
Customs Act, 1962—Section 113 (d) and (i)—Confiscation of goods under—
Appeal against—Allowed, holding that there was no power of confiscation—Legality of
—Divergence of opinion between several Benches of the CEGAT—Larger Bench
decision on reference—Assailed—Approved by the Apex Court 2003 (6) SCC 161
—CEGAT did not considered the effect of larger Bench judgment—CEGAT
directed to rehear the appeals—Order of CEGAT set aside—Matter remitted
accordingly for fresh consideration.
(Paras 7 to 9)
Case law.—2003 (6) SCC 161.
JUDGMENT
DR. ARIJIT PASAYAT, J.—Since all these appeals relate to identical question,
they are taken up for disposal by this common judgment.
2. The basic issue is when the market value of goods under export is much less than
the amount of drawback claimed, whether such goods can be confiscated for violation of the
provisions of the Customs Act, 1962 (in short the ‘Act’). In the matters relating to CA
No.4559-4561 of 2002, the respondent had sent a consignment to the export shed of ICD,
TKD, New Delhi for exporting the same under claim for duty drawback. On the basis of
intelligence, Directorate of Revenue Intelligence (in short ‘DRI’) detained the consignment.
It was, prima facie, noted that the goods did not appear as per description, quantity and value
disclosed in the bills. The consignments of the respondents were examined on different dates
by DRI.
3. Consignment of R1 was examined by DRI on 7.1.1999 and 12.1.1999, Consignment
of R2 was examined by DRI on 18.1.1999 and 25.1.1999, Consignment of R3 was examined
by DRI on 14.1.1999 and 08.02.1999.
4. The Commissioner of Customs directed confiscation of all the goods under Section
113(d) and (i) of the Act and allowed to redeem of the same on payment of fine of
Rs.10,00,000/-, disallowed the export of readymade garments and claim of drawback. No
penal action was invoked as DRI contemplated to seek separate adjudication in respect of the
penal clause provided under the Act. Appeals were preferred before the Customs, Excise and
Gold (Control) Appellate Tribunal (in short ‘CEGAT’) which allowed the appeals
holding that there was no power of confiscation and there was no material placed to record to
suggest that the goods did not correspond to any material entry made in the bills and
the correctness of the FOB and description of the goods specified in the bills had not been
disputed.
5. In support of the appeal learned counsel for the appellant submitted that Section
113(1) (d) and (c) apply as they deal with three types of goods, i.e. excisable goods,
prohibited goods and goods entered for exportation. Respondents attempted to export old
and used readymade garments etc. which is not permissible under Rule 3 of the Drawback
Rules. The market value was less than duty drawback which was not admissible under
Section 76(1)(b) of the Act. CEGAT has erroneously interpreted the provisions of Section
113(d) and (c) of the Act. The contents of the show-cause notice were not properly analysed.
6. Learned counsel for the respondent on the other hand supported the order of the
CEGAT.
7. It is to be noted that in view of the divergence of opinion between the several
benches of the CEGAT, matter was referred to a larger bench and the larger bench decision
was assailed by the assessee in the concerned case. Before this Court in Om Prakash Bhati
v. Commissioner of Customs, Delhi, 2003 (6) SCC 161, it was, inter alia, observed as
follows:
“6. At the outset, we would state that the learned counsel for the appellant has not
pressed for the drawback in view of specific provision of Section 76 which inter
alia provides that no drawback shall be allowed ‘(b) in respect of any goods the
market-price of which is less than the amount of drawback due thereon’.
Therefore, for the purpose of getting drawback, relevant consideration is the
market price of the goods prevailing in the country and not the price of the goods
which the exporter expects to receive from the overseas purchaser.
7. Next—as the order for confiscation of goods is passed by referring to Section
113(d) of the Act, we would refer to the same. It reads as under:—
“113. Confiscation of goods attempted to be improperly exported etc.—The
following export goods shall be liable to confiscation:—
(d) any goods attempted to be exported or brought within the limits of any customs
area for the purpose of being exported, contrary to any prohibition imposed by
or under this Act or any other law for the time being in force.”
8. The aforesaid section empowers the authority to confiscate any goods
attempted to be exported contrary to any ‘prohibition’ imposed by or under the
Act or any other law for the time being in force. Hence, for application of the said
provision, it is required to be established that attempt to export the goods was
contrary to any prohibition imposed under any law for the time being in force.
9. Further, Section 2(33) of the Act defines “prohibited goods” as under:—
“prohibited goods” means any goods the import or export of which is subject to
any prohibition under this Act or any other law for the time being in force but does
not include any such goods in respect of which the conditions subject to which the
goods are permitted to be imported or exported have been complied with.”
10. From the aforesaid definition, it can be stated that (a) if there is any prohibition
of import or export of goods under the Act or any other law for the time being in
force, it would be considered to be prohibited goods; and (b) this would not include
any such goods in respect of which the conditions, subject to which the goods are
imported or exported, have been complied with. This would mean that if the
conditions prescribed for import or export of goods are not complied with, it would
be considered to be prohibited goods. This would also be clear from Section 11
which empowers the Central Government to prohibit either ‘absolutely’ or ‘
subject to such conditions’ to be fulfilled before or after clearance, as may be
specified in the notification, the import or export of the goods of any specified
description. The notification can be issued for the purposes specified in sub-section
(2). Hence, prohibition of importation or exportation could be subject to
certain prescribed conditions to be fulfilled before or after clearance of goods. If
conditions are not fulfilled, it may amount to prohibited goods. This is also made
clear by this Court in Sheikh Mohd. Omer v. Collector of Customs, Calcutta and
Ors., 1970 (2) SCC 728, wherein it was contended that the expression
‘prohibition’ used in Section 111 (d) must be considered as a total prohibition and
that the expression does not bring within its fold the restrictions imposed by Clause
(3) of the Import Control Order, 1955. The Court negatived the said contention and
held thus:—
“...What Clause (d) of Section 111 says is that any goods which are imported or
attempted to be imported contrary to ‘Any prohibition imposed by any law for the
time being in force in this country’ is liable to be confiscated. ‘Any
prohibition’ referred to in that section applies to every type of ‘prohibition’. That
prohibition may be complete or partial. Any restriction on import or export is to
an extent a prohibition. The expression ‘any prohibition’ in Section 111(d) of the
Customs Act, 1962 includes restrictions. Merely because Section 3 of the
Imports and Exports (Control) Act, 1947, uses three different expressions
‘prohibiting’, ‘restricting’ or ‘otherwise controlling’, we cannot cut down the
amplitude of the word ‘any prohibition’ in Section 111(d) of the Act. ‘Any
prohibition’ means every prohibition. In other words all types of prohibitions.
Restriction is one type of prohibition. From item (I) of Schedule I, Part IV to
Import Control Order, 1955, it is clear that import of living animals of all sorts is
prohibited. But certain exceptions are provided for. But nonetheless the prohibition
continues.”
15. Apart from the aforesaid provision, for finding out the true export value of the
goods, Section 14 of the Act provides relevant procedure. Section 14 is to be
read along with Section 2(41), which defines the word ‘value’.
Section 2(41) reads as under:—
“Section 2(41) —”value”, in relation to any goods, means the value thereof
determined in accordance with the provisions of sub-section (1) of Section 14.
“Thereafter, relevant part of Section 14 reads thus:—
“14. Valuation of goods for purposes of assessment.— (1) For the purposes of the
Customs Tariff Act, 1975 (51 of 1975) or any other law for the time being in force
whereunder a duty of customs is chargeable on any goods by reference to their
value, the value of such goods shall be deemed to be—the price at which such or
like goods are ordinarily sold, or offered for sale, for delivery at the time and
place of importation or exportation, as the case may be, in the course of
international trade, where the seller and the buyer have no interest in the business
of each other and price is the sole consideration for the sale or offer for sale:
Provided that such price shall be calculated with reference to the rate of exchange
as in force on the date on which a bill of entry is presented under Section 46, or a
shipping bill or bill of export, as the case may be, is presented under Section 50.
(1-A) Subject to the provisions of sub-section (1), the price referred to in that sub-
section in respect of imported goods shall be determined in accordance with the
rules made in this behalf.
(2) Notwithstanding anything contained in sub-section (1) or sub-section (1-A) if
the Central Government is satisfied that it is necessary or expedient so to do, it
may, by notification in the Official Gazette, fix tariff values for any class of
imported goods or export goods, having regard to the trend of value of such or like
goods, and where any such tariff values are fixed, the duty shall be chargeable with
reference to such tariff value.
(3) ...”
16. The aforesaid section would be applicable for determining the value of goods
for the purpose of assessment of tariff under the Act or any other law for the time
 being in force whereunder a duty of customs is chargeable on any goods by
reference to their value. In the present case, on export of goods in question, no duty
was payable under the Act. It was, therefore, contended that there is no scope of
application of Section 14 for determining the value of goods by applying the
criteria laid in the said section. In our view, this submission cannot be accepted.
For determining the export value of the goods, we have to refer to the meaning of
the word ‘value’ given in Section 2(41) of the Act, which specifically provides
that value in relation to any goods means the value thereof determined in
accordance with the provisions of sub-section (1) of Section 14. Therefore, if the
export value of the goods is to be determined, then even if no duty is leviable, the
method (mode) for determining the value of the goods provided under Section 14
is required to be followed. Section 14 specifically provides that in case of assessing
the value for the purpose of export, value is to be determined at the price at which
such or like goods are ordinarily sold or offered for sale at the place of
exportation in the course of international trade, where the seller and the buyer have
no interest in the business of each other and the price is the sole consideration for
sale. No doubt, Section 14 would be applicable for determining the value of the
goods for the purpose of tariff or duty of customs chargeable on the goods. In
addition, by reference it is to be resorted to and applied for determining the
export value of the goods as provided under sub-section (41) of Section 2. This is
independent of any question of assessability of the goods sought to be exported to
duty. Hence, for finding out whether the export value is truly stated in the shipping
bill, even if no duty is leviable, it can be referred, to for determining the true
export value of the goods sought to be exported.
17. It is true that Section 50 of the Act inter alia provides that before exporting the
goods the exporter shall make entry thereof by presenting to the proper officer in
the case of goods to be exported, a shipping bill and a bill of export in prescribed
form. The Shipping Bill & Bill of Export (Form) Regulations, 1991 inter alia
prescribes the said form. After that form is amended w.e.f. 15.6.2001, it is stated
that exporter shall stated “Value - FOB/PMV where applicable”. We are not
required to deal with this aspect in this appeal as the goods were sought to be
exported in the year 1998.
18. From the aforesaid provisions, mainly, Section 2(41) read with Section 14 of
the Act and Section 18 of the Foreign Exchange Regulation Act, 1973, it is crystal
clear that:—
(a) Exporter has to declare full export value of the goods (sale consideration for the
goods exported).
(b) Exporter has to affirm that the full export value of the goods will be received in
the prescribed manner.
(c) If the full export value of the goods is not ascertainable, the value which the
exporter expects to receive on the sale of the goods in the overseas market.
(d) Exporter has to declare true or correct export value of the goods, that is to say,
correct sale consideration of the goods.
Criterion under Section 14 of the Act is the price at which such or other goods are
ordinarily sold or offered for sale in the course of international trade where the
 seller and buyer have no interest in the business of each other and the price is the
sole consideration for sale or offer for sale.
19. To the same effect, Rule 11 of the Foreign Trade (Development and
Regulation) Rules, 1993 provides. This rule is to be read along with Section 11(1)
of the Foreign Trade (Development and Regulation) Act, 1992, which inter alia
provides that no export or import shall be made by any person except in
accordance with the provisions of this Act, the rules and the orders made
thereunder and the export and import policy for the time being in force. Rule 11
reads thus:—
“11. Declaration as to value and quality of imported goods.—On the importation
into, or exportation out of, any customs ports of any goods, whether liable to duty
or not, the owner of such goods shall in the bill of entry or the shipping bill or any
other documents prescribed under the Customs Act, 1962 (52 of 1962), state the
value, quality and description of such goods to the best of his knowledge and belief
and in case of exportation of goods, certify that the quality and specification of the
goods as stated in those documents are in accordance with the terms of the
export contract entered into with the buyer or consignee in pursuance of which the
goods are being exported and shall subscribe to a declaration of the truth of such
statement at the foot of such bill of entry or shipping bill or any other documents.”
20. Hence, in cases where the export value is not correctly stated, but there is
intentional over-invoicing for some other purpose, that is to say, not mentioning
true sale consideration of the goods, then it would amount to violation of the
conditions for import / export of the goods. The purpose may be money laundering
or some other purpose, but it would certainly amount to illegal/unauthorised money
transaction. In any case, over-invoicing of the export goods would result in
illegal/irregular transactions in foreign currency.”
8. It would be appropriate for the CEGAT which had not considered the effect of
the larger Bench judgment, which had approval of this Court in Om Parkash case (supra)
to rehear the appeals. We, therefore, set aside the order of the CEGAT and remit the matter
to it for fresh consideration keeping in view the principles set out in the Om Parkash case
(supra).
9. The appeals are allowed to the aforesaid extent.
C.A. Nos. 140-143 of 2004:
10. The factual position is almost identical to those involved in C.A. Nos. 4559-4561
of 2002 except that in the instant case the appellant had filed an application for review
which was rejected.
11. Following the view expressed in the connected civil appeals we allow these
appeals and remit the matter to CEGAT for fresh consideration. It is to be noted that
CEGAT is presently known as Customs, Excise and Service Tax Appellate Tribunal.
12. Appeals are allowed.
Appeals allowed.

[2007 (2) TNCJ 635 (Mad)]

MADRAS HIGH COURT
BEFORE:
P. JYOTHIMANI, J.
K.S. RAMANATHAN (DIED) AND ANOTHER ...Appellants
Versus
R. JAYARAMAN AND OTHERS ...Respondents
With
R. RAMAMOORTHI AND ANOTHER ...Appellants
Versus
R. JAYARAMAN AND OTHERS ...Respondents
[Appeal Suit No. 768 of 1985 and 974 of 1986 and C.M.P. Nos. 1559 and 1623 of 1998,
decided on 10th August, 2007]
(A) Limitation Act, 1963—Sections 3 (1), 6 and 8—Articles 59 and 110—Partition
suit—Limitation for filing—Plaintiff was minor at time of partition of property—His
two minor brothers were given share but he was deprived—Suit filed after 16 years of
attaining majority—Held, plaintiff had knowledge about his exclusion from joint family
when he became major hence filing of suit after 10 years is certainly barred by
limitation.
The plaintiff while giving evidence as P.W.1 has not chosen to state anywhere as to
when he came to know about Ex.A1 partition deed dated 21.10.1959. On the other hand,
the close analysis of his entire evidence shows that he had knowledge about the family
arrangement in the year 1955 and subsequent partition in the year 1959 and also about all
the subsequent documents. He has stated at one place,
He would further state,—
He states in his cross-examination that,—
Therefore, the abovesaid evidence of the plaintiff clearly establishes that he had
knowledge about Ex.A1 1959 document partition deed at least from the date when he has
become major in the year 1966. Even though it is true that the plaintiff has not been
allotted property under Ex.A1 partition deed while the 2nd and 3rd defendants have been
allotted properties, the question that arises is whether his right of partition will survive 16
years after his knowledge about his ouster from the joint family properties. As correctly
pointed out by the learned senior counsel for the appellants, the factual position is
clear, but the only question remains to be answered is the legal issue as to whether the
plaintiff has come to the Court within the period of limitation as prescribed under the
Limitation Act, 1963?
Section 3(1) of the Limitation Act, 1963 specifically states that even if the period
of limitation is not pleaded as a defence, the suit instituted after the period of limitation
shall be dismissed subject to Sections 4 to 24, dealing with the time during which the Court
is closed.
Regarding the person who has legal disability like minor, insanity or idiocy, Section
6 of the Limitation Act says that the period of limitation shall run after the disability is
ceased, which means that in respect of a minor, the limitation starts when he becomes
major. Section 8 of the Limitation Act, which is an exception to Section 6, gives
three more years time for the period of limitation from the cessation of disability Part 4 of
the First Division in the Schedule of the Limitation Act, viz., Article 59 deals with the
suit, “to cancel or set aside an instrument or decree or for the rescission of a contract.
The period of limitation for the same is stated to be three years from the time when the
facts entitled the plaintiff to have the instrument or decree cancelled or set aside or the
contract rescinded first become known to him”.
By applying the said article, for cancelling Ex.A.1 partition deed dated 21.10.1959,
for the reason that the plaintiff was not a party to it, the plaintiff who attained majority and
became major in 1966, in the light of Sections 6 and 8 of the Limitation Act, should have
filed the suit in the year 1972, since he had knowledge on the date of his majority.
If the grievance of the plaintiff is that under Ex.A1 he has been excluded from joint
family properties and therefore he has got a right of enforcing his share, in such matter,
Article 110 states “by a reason excluded from a joint family property to enforce a right
to share thereunder”, the period of limitation for filing the suit is 12 years from the time
“when the exclusion becomes known to the plaintiff”. By applying this article and based
on the pleadings and evidence, the plaintiff had the knowledge about his exclusion from
the joint family under Ex.A1 partition deed, when he became major in 1966, and by a
conjoint reading of Sections 6 and 8 along with said Article by giving the benefit of said
exemption under Section 8, it is clear that the plaintiff should have filed the suit in the year
1981, whereas the present suit was filed on 20.03.1982. Therefore, without even going
into the other contention raised by the learned senior counsel for the appellant about the
knowledge of guardian which could be imputed to that of the minor, I am of the
considered view that on the legal issue of filing of the suit, since the factual issue is very
clear based on the pleadings and evidence, the suit for partition filed by the plaintiff,
claiming a share knowing that he has been excluded from the joint family properties is
certainly barred by limitation.
It is clear that the plaintiff was aware of Ex.A1 partition deed and the plaintiff who
claims to be a member of joint family from which he was totally excluded and therefore,
there is no difficulty to come to the conclusion that after the lapse of 12 years he loses his
right. As I have stated earlier, it is not even his pleading that the 1st defendant, his father
has committed fraud in excluding the plaintiff from the joint family property. On the
other hand, as per the legal dictum, the 1st defendant being the father and guardian was
certainly entitled to act on behalf of the plaintiff and inasmuch as such act of the 1st
defendant was not questioned by the plaintiff, based on the Ex.A1 partition deed, there is
absolutely no difficulty to come to the conclusion that the suit is barred by limitation.
(Paras 34 to 37 and 41)
(B) Partition deed—Not expressly stated by father that he entered into such
partition deed in representative capacity on behalf of his minor son— Held, capacity
can be presumed unless it is shown that there is conflict between him and his son.
The 1st defendant being the father and guardian of the plaintiff, has signed
Ex.A1 partition deed dated 21.10.1959 even if it does not expressly state that he enters
into such partition deed in the representative capacity on behalf of his minor son, the
capacity can be presumed unless it is shown that there is conflict between him and his son.
(Para 38)
(C) Indian Succession Act—Section 63 (c)—Indian Evidence Act, 1872—Section
68—Will—Proof of—To prove a Will it is enough to examine at least one of attesting
witnesses—Not necessary that both attesting witnesses should be examined.
Even though objections are filed by the respondents to the said finding on the basis
that Ex.B-4 Will was proved by the evidence of two attesting witnesses, but to prove Ex.A-
1 Will only one attesting witness was examined as P.W.2, the law in this regard is well
settled. As per Section 63(c) of the Indian Succession Act read with Section 68 of the
Indian Evidence Act, to prove a Will, it is enough to examine at least one of the attesting
witnesses and there is no necessity that both the attesting witnesses should be examined.
(Para 64)
Case law.—AIR 1963 SC 906; 1943 (2) MLJ 83; AIR 1962 SC 287; 1994 (1) MLJ
216; 2000 (6) SCC 151; 1978 (1) MLJ 56; 2003 (2) L.W. 809; 1953 (1) MLJ 508 referred;
2003 (2) L.W. 163; 1950 (2) MLJ 353; AIR 1966 Mad 266; 1983 (2) SCC 155; 2000 (6) SCC
151; 1919 Vol. 37 MLJ 256.—relied on.
Counsel.—Mr. V.T. Gopalan, Sr. Counsel for Mr. J. Srinivasa Mohan, for the
appellants; Mr. G. Rajagopalan, Sr. Counsel for Mr. Sundaresan for respondent 1, Mr. S.
Thiruvenkataswami for respondent 4, Mr. R. Seetharaman (party-in-person)
respondents 3 to 7 given up in AS. 768/85, No appearance for respondents 5 to 7 in AS.
974/86.
JUDGMENT
P. JYOTHIMANI, J.—The first defendant in the suit is the appellant in A.S.No.768
of 1985 and the defendants 2 and 6 in the suit are the appellants in A.S.No.974 of 1986.
The first respondent has filed the suit in O.S.No.20 of 1982 on the file of Subordinate
Judge, Pattukottai praying for a preliminary decree for partition of 1/4th share in the
properties mentioned in Schedules 1 to 9, or alternatively prayed for a decree for partition of
1/2th share in Schedules 1, 2, 3, 8 and 9, with reference to good and bad soil, by metes
and bounds. That apart, he has also claimed partition of 1/5th share in the jewels or
their value in 10 Schedule.
th

2. The plaintiff’s case was that the plaintiff and the defendants 2 and 3 are the
undivided sons of the first defendant and they constituted a Hindu Joint Family owning
joint family properties described in Schedules 1 to 9, besides other properties which
were already sold. According to the plaintiff, the first defendant’s father, viz., Chinnaiah
Thevar and his brother Kutty Thevar were living at Ceylon doing money-lending, pawn
broker and General Merchant business. The said Kutty Thevar has settled his claim
with his brother, Chinnaiah Thevar and returned to India and thereafter, Chinnaiah Thevar
was solely entitled to the business. After the said Chinnaiah Thevar returned to India, the
first defendant, being his son was managing the business and ultimately, the business
came to be wound up.
2 (a). It is the plaintiff’s case that Chinnaiah Thevar along with his sons, viz., first
defendant and one Karuppaiah Thevar were living as joint family along with
his brother, Kutty Thevar and his sons. In 1955, the properties in India
were divided between the branches of Chinnaiah Thever and Kutty Thevar
by way of family arrangement. In the said partition, the said Chinnaiah
Thevar did not retain any share, but agreed for the division of properties into
two equal shares by the branches of Chinnaiah Thevar and Kutty Thevar and
he was satisfied with a half share of properties given to him being divided
between his two sons, viz., first defendant and Karuppaiah Thevar, since
Chinnaiah Thevar was getting pension of Rs.150/- from Ceylon. Therefore,
by virtue of family arrangements certain items of suit properties were
allotted to the first defendant family, while some other properties were
allotted to the first defendant’s brother Karuppaiah Thevar family and also to
Kutty Thevar family. The plaintiff understands that by a partition deed dated
 21.10.1959 the properties allotted to the share of family of first defendant were
divided between the defendants 1, 2 and 3 for land ceiling purposes to which the
plaintiff was not a party. According to the plaintiff, there was no partition and
the division was only between the first defendant and his brother and Kutty
Thevar. According to the plaintiff, in spite of the said partition dated
21.10.1959, the plaintiff and defendants 1 to 3 continued to be members of the
Hindu coparcenary. The plaintiff would state that the first defendant was
maintaining the properties even after the partition dated 21.10.1959. The
plaintiff would also state that there was an exchange of some of the properties
allotted to his paternal uncle, Karuppaiah Thevar with the properties of first
defendant family and in such documents also, all the members have joined in
the execution.
2 (b). It is the further case of the plaintiff that between the first defendant family and
his brother Karuppaiah Thevar’s family certain properties were kept joint
which were described as Schedule-Q in the said partition deed. In a later
division between the first defendant and his brother Karuppaiah Thevar, house
properties at Pattukkottai were allotted to the first defendant’s family
while the house at Periyanayakipuram was given to the fist defendant’s
brother Karuppaiah Thevar towards his share. The house which was allotted
to the first defendant’s family was sold by him for the family benefits, viz., for
rice mill and paddy business and putting up a house at Avanam and the
agricultural lands were also sold for the business and for purchasing other
properties, apart from construction of house. All the said purchases were made
in the name of the first defendant as well as in the names of plaintiff
and defendants 2 and 3 from and out of joint family income and from the
money sent by the plaintiff and third defendant. According to the plaintiff,
the first defendant has been completely maintaining the properties along with
the second defendant who was living with him. The plaintiff states that the
first defendant being the father of the plaintiff, received the presents given by
the father-in-law of the plaintiff as well as the 2nd defendant and 3rd defendant
who has also sent money from and out of his earning as an Engineer. The
plaintiff has sent Rs.27,000/- to the first defendant for the joint family
funds.
2 ( c). The plaintiff would also state that as per the custom in the family, on the
occasions of ear-boring ceremony and other important functions, the relatives
and friends used to present cash called, “moi” and the same were received
subject to repayment whenever similar functions were celebrated by the
persons who made the cash presents. By the celebration of ear-boring
ceremony of the second defendant’s son, the first defendant has received cash
of Rs.1,35,000/- and the same was retained for the joint family benefits.
According to the plaintiff, the first defendant as the manager of the family
was also having an agency with Food Corporation of India for purchasing
paddy and he was having licences for dealing with wholesale paddy and rice
and the income from the said business was also treated as joint family
property. The plaintiff would also state that the first defendant has obtained
power of attorney from the plaintiff and the 3rd defendant as they were away
 from the village so as to bind them in all the family dealings. The plaintiff
has been working as a Mechanical Engineer in B.H.E.L. Since his service
is required by the Malaysian Government, he is at present at Malaysia.
According to the plaintiff, the first defendant was arranging to give major
portion of properties to the second defendant by misusing the powers
given to him. Therefore, the plaintiff has revoked the power on 18.7.1981 after
coming to India. Likewise, the third defendant also revoked the power.
According to the plaintiff, this conduct has provoked the first defendant to
create various records prejudicial to the interests of the plaintiff and the 3 rd
defendant. The plaintiff has demanded partition from the first defendant
through mediators on 9.3.1982 which was evaded by the first defendant.
Therefore, the plaintiff has filed the present suit for partition. He would
also state that the plaintiff’s mother died in December, 1977 and she was
having jewels as mentioned in 10th Schedule. According to the plaintiff, the
properties are inherited by the plaintiff and defendants 1 to 4, the 4th
defendant being his sister. The plaintiff also states that for any reason, if the
Court holds that the plaintiff was not a party to the partition and he should be
construed as a coparcener along with the 1st defendant, the plaintiff is
entitled to a half share in respect of Schedules 1 to 3, 8 and 9 properties,
besides 1/5th share in Schedule-10.
3. The first defendant has filed a written statement. While denying various allegations
raised by the plaintiff, the first defendant who is the father of the plaintiff, would state
that the claim of the plaintiff is contradictory. While the plaintiff admits in one place
that Kutty Thevar has settled all his claims with Chinnaiah Thevar at Ceylon and came to
India, he has chosen to give a contradictory version that Chinnaiah Thevar and his sons
were living as members of joint family along with his brother Kutty Thevar. While it
is true that there was a family arrangement in the year 1955 and properties were divided
between the branches of Chinnaiah Thevar and Kutty Thevar, it is denied that the land
reforms registration is the basis for such family arrangement. It is also denied that there
was no division as per family arrangement. The first defendant also denies the allegation
that the plaintiff and defendants 1 to 3 constituted a coparcenary. It is the case of the first
defendant that the very fact that later there was a division between the first defendant and
his brother shows that there was a clear division of properties. The allegation that the
income from properties was used for the rice mill and paddy business is also denied. It
is also denied that the plaintiff and the 3 rd defendant have sent moneys and the properties
were purchased in the name of the plaintiff and the defendants 2 and 3 with the joint
family income.
3 (a). The first defendant also denies that the plaintiff has sent
Rs.27,000/-. Apart from denying the allegation regarding “moi”, the
allegation that the first defendant continued to be the manager of the joint
family is also denied. The first defendant states that he has been working in
Ceylon prior to 1944 and earned substantially and in 1948 when he visited
India, he invested in a bank in India, a sum more than Rs.10,000/- under fixed
deposit receipts. In the year 1947, the first defendant’s father has
transferred his interest in a partnership firm for a consideration of Rs.8,000/-
and partnership was reconstituted superseding the earlier partnership by
 dropping the father’s name, viz., Chinnaiah Thevar. The first defendant had
been visiting India frequently bringing moneys and between 1949 and 1961,
the first defendant brought more than Rs.22,891/- and the same was endorsed
in the passport also.
3 (b). It is the case of the first defendant that the father of the first
defendant, viz., Chinnaiah Thevar had only a site as his ancestral property and
there was no ancestral nucleus to give rise to any income therefrom. When
the father of the first defendant returned to India in or about 1948, the plaintiff
was just born and the second defendant was about 4 years old and the third
defendant was 2 years old. The first defendant states that to avoid any
difference between himself and his brother Karuppaiah Thevar, he contented
himself with whatever share was allotted to him and the father of the first
defendant was well aware that there was no ancestral property and in fact
before 1947 repatriation he allowed his brother Kutty Thevar to take away his
properties leaving the remaining to the first defendant and his brother.
According to the first defendant, that was the conscientious conduct of the first
defendant’s father to disclaim any share for himself. Therefore, the
allegation that there was ancestral property of Chinnaiah Thevar available in
the hands of the first defendant is false. At the time when the written
arrangement was made in the year 1955, the plaintiff was a minor of 7 years
old and the first defendant was acting as patria potestas to represent the
plaintiff as his father and he had every right to agree for allocation to the
defendants 2 and 3. According to the first defendant, the properties are neither
ancestral, nor coparcenary or joint family properties and they are separate
self-acquired properties of the first defendant. Therefore, sons of the first
defendant have no manner of right to claim share. Since the third defendant
was educated at Trichy, he was provided with a suitable lesser share and for
the education of the third defendant at Trichy, the first defendant had to sell a
small item of third defendant’s share on 3.7.1961 for his educational expenses
and he was also subsequently educated at St.Joseph College at Trichy and
Engineering College at Coimbatore with considerable costs and strain.
Similarly, the first defendant states that the plaintiff was educated at
Pudukkottai and P.S.G. College, Coimbatore and his educational expenses
were made only from and out of the allotment made to him under the
arrangement stated.
3 (c). According to the first defendant, the plaintiff and the third defendant have
no justification to protest against the family arrangement arrived at and they
have no right to unsettle the settled. The first defendant also states that he
was not getting money from anyone including his sons. It is the first defendant
who has purchased lands at Lakshminarasimhapuram and Periyanayakipuram
villages in the name of third defendant under registered sale deeds dated
13.10.1978 and 22.6.1978. The first defendant has purchased on 22.3.1979
only one item in Schedule-8 in the name of the plaintiff. That apart, some
lands in Perianayagipuram village and Lakshmina-rasimhapuram village were
also purchased by the first defendant in favour of the plaintiff under registered
sale deeds dated 27.6.1979 and 22.6.1978. According to the first defendant,
 the mill business, Avanam building, rice and paddy business and Food
Corporation of India Agency are all separate properties of the first defendant.
It was the first defendant who purchased the mill sites under three sale deeds
and he had the means for the same, since he was having moneys in India which
he had brought on various occasions, and there was no difficulty for the first
defendant to purchase the sites. He has also brought gold and other
ornamental jewels and coins besides cash from Ceylon.
3 (d). On various occasions, he has also brought moneys to India. The first
defendant has given “moi” to different parties to the tune of Rs.55,177/- and
subsequently also he has spent a sum of Rs.42,722/- by way of “moi” and the
first defendant was due to repay “moi” to the extent of Rs.19,720/-. According
to the first defendant, there was no joint family and joint income. Mere
association in the execution of some documents will not confer any right to
the plaintiff. It is also denied that the first defendant and the second defendant
are having joint living and joint income. According to the first defendant, they
are distinct and separate. The first defendant would state that the plaintiff
and third defendant are well-educated and the second defendant is uneducated
and living solely depending on the income from agricultural properties.
According to the first defendant, the properties not available for partition are
included in the plaint. There are many properties stated in the plaint were in the
name of the first defendant which were subsequently sold. The first defendant
also denies the claim of the plaintiff in respect of Schedule Nos.9 and 10.
4. The second defendant has filed a written statement, inter alia, contending that in
1955 there was a complete family division by way of arrangement and specific
properties were allotted to the share of the second defendant and he was also put in
possession and he has been in exclusive possession ever since the said date. The said
arrangement was subsequently reduced into writing in 1959 by way of a registered
document and at that time, since the second defendant was minor, he was represented by the
first defendant being his father and after he became major, he started enjoying the
properties directly. The exchange effected on 27.6.1965 was also to the knowledge of
the plaintiff and the same was never questioned. The second defendant also states that after
division of properties, he is enjoying the properties by cultivation and the plaintiff cannot
claim any share in the properties mentioned in all the schedules. The second defendant has
also pointed out that survey numbers of various properties are given wrongly. The second
defendant states that he has purchased an extent of 44 cents in Avanam village described in
Item No.1 of plaint Schedule-6 and it is his separate acquisition. He also states that an
extent of 1.13 acres in Pulichankadu village described as plaint Schedule-6 belongs to the
wife of the second defendant, purchased with her siruvadu funds and it is the separate
property of his wife, viz., 6th defendant Vasanthal, who is in actual possession as its
owner. The second defendant is not aware of the existence of jewels in the plaint
Schedule-10. It is also the case of the second defendant that he has been carrying on the
business in fertilisers jointly with the 4th defendant’s husband and he is liable to account
for the same and when a demand was made to him, he evaded the same, and it is at his
instance, the plaintiff has filed the present suit for partition. In respect of Item Nos.1 to 5 of
Schedule-1 in Periyanayagipuram village of an extent of 6.29 acres, the same were
leased out by the first defendant from 1965 onwards on yearly lease of paddy of 40 bags
and they are in his leasehold cultivation along with his separate lands. That apart, the
second defendant adopts various other averments made by the first defendant in his
written statement. The second defendant also states that in any event, he has perfected title
by adverse possession since he has been in possession of the properties from 1955, and in
respect of his separate properties, he has the right on the basis of ouster and the claim of the
plaintiff is barred by limitation.
5. The third defendant has filed a written statement. The third defendant substantially
accepts the pleadings in the plaint including the arrangement of the year 1955. In respect
of the partition dated 21.10.1959, it is the case of the third defendant that he is not aware of
the same till recently and according to him, the partition is not only a sham and nominal, but
also a void ab initio for the reason of unequal division and the third defendant is not bound
by such partition deed. According to the third defendant, he also continued to be a joint
family member along with the defendants 1 and 2. The third defendant states that he is not
aware of any alienation. He also states that alienation was made by the first defendant as
only the joint family manager for constructing a house at Avanam village and for putting
up paddy business and rice mill. The third defendant would also state that the first
defendant has been managing the entire properties as Manager of the joint family. It is
also the case of the third defendant that the first defendant obtained power of attorney from
him in order to bind him in dealing with the joint family properties and business. When the
first defendant started misusing the power in order to allot major shares to the second
defendant, the third defendant revoked the power of attorney. It is the case of the third
defendant that at the time of death of his mother, she was having 65 sovereign of jewels
which are described in Schedule-10. He also prays for a decree for partition of 1/4th share
in Schedules 1 to 9 properties and 1/5th share in Schedule-10.
6. The fourth defendant, who is the daughter of the first defendant, has filed the
written statement. According to her, she belongs to “Onpathu Nadu”. As per the custom of
“Onpathu Nadu”, the jewels of mother are to be given to the daughter and therefore, all
jewels mentioned in Schedule-10 are to be given to her. However, she claims 1/5th share in
the jewels mentioned in the schedule.
7. The 5th defendant is the purchaser of property, viz., 4th item in Schedule-3 at
Avanam village from the first defendant under registered sale deed dated 6.8.1964 and
after the purchase, he has planted coconut seedlings and now there are about 20 yielding
coconut trees, aged about 17 years. The fifth defendant would also state that the said
property was purchased by the first defendant from one Sethu Thevar under a registered sale
deed dated 1.1.1961 and being the absolute owner, he has sold the property to the 5th
defendant and the 5th defendant is the bona fide purchaser and he is in enjoyment of the
same without any obstruction in respect of the said item of the properties.
8. The 6th defendant who is the wife of the second defendant has also filed a
written statement. The 6 th defendant was married to the 2nd defendant in the year 1968
and at the time of marriage, she was presented with jewels, cash and other seers as per the
custom. Therefore, those presents have become her siruvadu funds in which others can
have no right or claim. It is with the said funds, she has purchased 1.13 acres in
Pulichankadu village described in Schedule-6 in S.No.74/1. According to the 6th
defendant, her husband 2nd defendant is a divided member from his father and living
separately with the 6th defendant and the sale deed for the said property was got executed in
the name of 2nd defendant, husband of the 6th defendant for the purpose of starting a coir
industry. It is also the case of the 6th defendant that in respect of movable properties
mentioned in Schedule-9, Items 11 to 14, they belong to the 6th defendant as they are part of
customary seer presented to her at the time of marriage.
9. The 8th defendant who has purchased some of the properties, viz., item Nos.12
and 13 in Schedule 5 of the plaint from the 2nd defendant under registered sale deed
dated 28.2.1980 would state that he is in uninterrupted possession of the properties for
more than 12 years raising punja crops and paying kist to the Government and no one is
entitled to the properties.
10. It is with the above pleadings, the trial Court has framed the following issues:
1. Whether the suit properties are liable for partition as Joint family
properties?
2. Whether Schedules 6 to 8 are absolute properties of the first
defendant?
3. Whether it is true that the partition of the year 1959 was not entered and
acted upon?
4. Whether the first defendant has to pay any amount in respect of “moi”
account?
5. Whether the 1st defendant has paid any amount, if so, to what extent?
6. Whether the first defendant is liable to account for the amount?
7. Whether Schedules 7 and 8 properties were purchased from the money
given by the plaintiff and third defendant?
8. Whether Schedules 4 to 6 properties are absolute properties of the 2nd
defendant?
9. Whether the particulars of suit properties are correct?
10. Whether the suit is bad for non-joinder of necessary parties?
11. The following additional issues were framed:
1. Whether the 5th defendant has acquired adverse possession in respect of
property, viz., item No.4 of Schedule-3?
2. Whether the 5th defendant is entitled to equity relief?
3. Whether the property comprised in survey No.74/1 to the extent of 1.13
acres mentioned in the Schedule-6 is the absolute property of the 6th
defendant?
4. Whether items 9 and 11 to 14 in Schedule-9 absolutely belong to the
6th defendant?
5. Whether the 8th defendant has acquired title by adverse possession in
respect of item Nos.12 and 13 of the Schedule-5 properties?
6. Whether the 8th defendant is entitled to equity relief?
12. On the plaintiff’s side 87 documents were marked as Exs. A-1 to A-87 and five
witnesses were examined, including the plaintiff as P.W.1. On the defendant’s side, 112
documents were marked as Ex.B-1 to B-112 and six witnesses were examined out of
whom, the 4th defendant was examined as D.W.1, the 3rd defendant as D.W.2, first
defendant as D.W.5 and the 2nd defendant as D.W.6.
13. The trial Court, after elaborate trial, has held that the first defendant was
conducting his business at Ceylon as a joint family member and it is not true that after
paying a sum of Rs.8,000/- to his father Chinnaiah Thevar, the first defendant has
conducted the business as his own business. The trial Court also found that the jewels
mentioned in Schedule-10 are not liable for partition. In respect of movables in
Schedule-9, the trial Court has held that items 1, 2 and 4 are not joint family properties
and are not liable for partition and all other items in 9th Schedule are liable for partition.
The trial Court further held that Schedules 6 to 8 properties are not self-acquired properties
of the first defendant. It also found that the partition deed of the year 1959 has not come
into effect. The trial Court has also found that the first defendant was not liable for
accounting either for “moi” or any other amount. Ultimately, the suit for partition was
decreed granting 1/4th share to the plaintiff in Schedule Nos.1 and 2 and in the third
schedule, items 1 to 3, Schedules 4 and 6 to 8, all properties except item Nos. 12 and 13
in 5th Schedule and item Nos.3 and 5 to 19 in 9 th Schedule. The third defendant was also
granted 1/4th share in the above said properties. The trial Court also held 4 th item in 3rd
Schedule and items 12 and 13 in 5th Schedule belong to the defendants 1 and 2 respectively
and declared that item Nos.1,2 and 4 in 9th Schedule properties are absolute properties
of the first defendant. The trial Court also held that the plaintiff and the third defendant are
not entitled to account for 10th Schedule properties and a preliminary decree in the abovesaid
manner was passed by the trial Court. It is aggrieved by the said judgment and decree of the
trial Court, the defendants 1 and 2 have filed the above first appeals.
14. Pending the above appeals, the appellant in A.S.No.768 of 1985 died on
18.7.1995. The second respondent in the said appeal who is the appellant in A.S.No.974
of 1986 claims to have the right of his father, the appellant in A.S.No.768 of 1985 as per
Will dated 2.9.1985 said to have been executed by the said K.S.Ramanathan, bequeathing
all the properties belonging to the appellant in A.S.No.768 of 1985 to him, has filed
C.M.P.No.11380 of 1985 in A.S.No.768 of 1985 before this Court to transpose him as
appellant in the said A.S.No.768 of 1985 to prosecute the appeal. According to him, his
father, the original appellant K.S.Ramanathan in the said Will dated 2.9.1985 has
authorised him to conduct litigation after his death and therefore, by virtue of the Will, he
has succeeded the estate of the appellant. The said application was resisted by the first
respondent in the appeal who was the plaintiff in the suit and the third respondent.
15. According to the first respondent in the counter affidavit, the appellant in
A.S.No.768 of 1985 died on 18.7.1985 intestate and he has left behind himself, the
petitioner in the said C.M.P.No. 11380 of 1985, and the third and 4th respondents as his
sons and daughter and therefore the petitioner alone cannot claim that he is entitled for
prosecuting the appeal. It is also his case in the counter affidavit that the claim of the
petitioner basing on the alleged Will of the appellant dated 2.9.1985 is not true. Likewise,
the 4th respondent in the appeal, viz., Janaki, daughter of the appellant K.S. Ramanathan
also claimed that the appellant has executed a Will dated 24.3.1995 bequeathing his
estate in her favour. It was in those circumstances, this Court, by order dated 29.9.1995,
directed the trial Court to decide as to the genuineness of the said Wills and submit its
finding under Order XXII, Rule 5, C.P.C. as to who is entitled to succeed the estate of
the testator appellant and it was with that direction, the matter was forwarded to the trial
Court for enquiry and recording its findings. The trial Court, based on the said direction
given by this Court, conducted enquiry relating to the abovesaid Wills dated 2.9.1985 and
24.3.1995 in I.A.No.460 of 1995 in O.S.No.20 of 1982 and submitted its report on
30.4.1995 with the following findings:
 1. The Will of K.S.Ramanathan Thevar dated 2.9.1985, Ex.A-1 produced by
the petitioner Ramamurthi is genuine, true and valid.
2. The Will alleged to have been executed by Ramanathan Thevar dated
24.3.1995, Ex.B-4, produced by Janaki, 4 th respondent in A.S.No.768
of 1985 is not true, genuine and valid.
16. It is seen that the trial Court has given the said finding after examination of two
witnesses, P.Ws.1 and 2 on the side of petitioner in the transpose application (2 nd
defendant in the suit) and also marked documents as Exs.A-1 to A-12 apart from examining
8 witnesses on the respondent side, viz., R.Ws.1 to 8 and marking 4 documents as Exs.B-1
to B-4. The trial Court analysed the Will dated 2.9.1985 marked as Ex.A-1 under which
the second respondent in the appeal, Ramamurthi claimed his right stating that the
appellant, his father K.S.Ramanathan has bequeathed all his estate in his favour and also
Ex.B-4 Will dated 24.3.1995 produced by the 4th respondent Janaki, daughter of the
appellant K.S.Ramanathan claiming that the said Will was executed by her father by
bequeathing his properties in her favour. The trial Court while giving findings as per the
direction of this Court, has found that the attesting witness of Ex.A-1 Will dated
2.9.1985, which is a registered document, was examined as P.W.2 (Marimuthu) who has
given cogent evidence stating that he along with one Thangavelu attested the Will and
that they have seen K.S.Ramanathan signing the Will Ex.A-1 and in turn, Ramanathan has
seen the witnesses signing the said Will. Finding that there was no contrary evidence to the
effect that Ramanathan was not in any way incapacitated physically or mentally and
also finding that even according to the first respondent herein (plaintiff in the suit), the said
Ramanathan was a strong willed man, has given a finding that Ex.A-1 Will stands
proved in the manner known to law and it is in sufficient compliance of Section 68 of the
Evidence Act and Section 63(c) of the Indian Succession Act. The trial Court has also
found that on evidence it is clear that Ramanathan Thevar would have in all
probabilities thought of bequeathing his properties in favour of the 2nd respondent in the
appeal, Ramamurthi who was the petitioner in C.M.P.No.11380 of 1995.
17. The trial Court while considering the Will produced by the 4th respondent
Janaki, marked as Ex.B-4 dated 24.3.1995 said to have been executed by the appellant
Ramanathan bequeathing his estate in her favour, has clearly found that the said Will is not a
genuine and true document. In fact, the trial Court has compared the signatures of
Ramanathan Thevar as found in the admitted letters written by him, marked as Exs.A-6,
A-7, A-8 and A-11 with the signature found in Ex.B-4 Will and found that even to a
naked eye, the disputed signature in Ex.B-4 is not comparable with the admitted
signatures. The said Ex.B-4, which is not a registered document, while compared to Exs.A-1
and A-2 Wills wherein Ramanathan used to be very brief, contains minute details about all
cases. The Court has also correctly found that if really Ex.B-4 Will was true, Ramanathan
Thevar would have contacted his counsel at Madras to withdraw his appeal. That apart, the
Court has also found that even as per the document produced by the 4 th respondent, viz.,
diary of Ramanatha Thevar, marked as Ex.B-5, there is no entry about the Will dated
24.3.1995. The Court also found contradiction in the evidence of R.Ws.7 and 8 stated to
be the attesting witnesses of Ex.B-4. It is on that clear finding, the trial Court has sent its
report. The first respondent in the appeal who was the first respondent in
C.M.P.No.11380 of 1995 has filed objection to the finding submitted by the trial Court.
Likewise, the third respondent in the appeal, R.Seetharaman has also filed his
objection. In the said objection, third respondent in the appeal Seetharaman has taken a
ground that he was not given notice by the trial Court while conducting enquiry about
genuineness of the said Wills in I.A.No.460 of 1995 in O.S.No.20 of 1982. Apart from other
objections, he would also state that his father, appellant wanted to enter into a deed of
compromise, which was signed by 5 V.I.Ps. in the village and witnessed by the entire
village. He has also stated that since he has not been given notice in I.A.No.460 of 1995,
he was deprived of opportunity of submitting certain relevant materials and documents
and also sought for remanding the matter to the lower Court.
18. It is seen that after the report was submitted by the trial Court, this Court, by
order dated 6.9.1996, considering the objections raised by the parties to the said
findings and observing that the genuineness or otherwise of the said Wills can be decided at
the time of disposal of the appeal, has ordered transposing of the second respondent as the
second appellant in the appeal without prejudice to the rights of the parties. The operative
portion of the said order is:
“Now that the appellant is dead, in order to prosecute the matter further, any one
of the Legal Representatives have to be transposed as the appellant, otherwise, the
appeal automatically abates. In order to keep the appeal alive and to give an
opportunity to the parties to agitate their rights before this Court, I am of the
view that the petitioner herein can be transposed as appellant without
prejudice to the rights of the other parties which can be gone into at the time
of final disposal of the appeal. Hence, the C.M.P. is ordered as prayed for.”
Accordingly, the second respondent in the C.M.P. has been transposed as second
appellant in the appeal.
19. It appears that the second respondent in the appeal R.Seetharaman has filed an
application before this Court in C.M.P.No.17467 of 1996 to issue subpoena to Thiru Arun
Chinnappa, Advocate, to appear before this Court and explain as to how he had
appeared before the trial Court during the time when the trial Court conducted enquiry as
per the order of this Court to give findings in respect of genuineness of the Wills, when
he has not authorised the said advocate to appear on his behalf, since he has not received
notice to appear in I.A.No.460 of 1995 and in that C.M.P. while rejecting the same, this
Court has passed the following order:
“Notice cannot be issued to advocate practising in Sub-Court, Thanjavur to
come to this Court and explain as to how he has appeared on behalf of the
petitioner herein in Pattukkottai Sub Court in I.A.No.460/95 in O.S.No.20/82.
This petition is therefore rejected.”
Against the said order of the learned Single Judge, the third respondent herein has
filed an appeal in L.P.A.No.36 of 1996. While dismissing the said appeal, the Division
Bench has passed the following order:
“Preserving all the rights to the appellant to agitate such matters at the time of the
hearing of the appeal A.S.No.768/85 this present appeal against the order refusing
to summon the advocate is dismissed. “
20. In respect of the findings submitted by the trial Court, the third respondent filed
objections and also appeared as party-in-person. He submitted that he has not been given
notice in I.A.No.460 of 1995 in O.S.No.20 of 1982 and therefore, prayed for remanding the
matter again to the trial Court. The said contention cannot be accepted for the reason that
the purpose of remitting the matter by this Court earlier to the trial Court was to find out
the genuineness of the Will dated 2.9.1985, Ex.A-1, produced by the second
respondent in the appeal and another Will dated 24.3.1995 marked as Ex.B-4 and
produced by the 4th respondent, both claiming to have inherited the estate of the
appellant K.S.Ramanathan under the said respective Wills and to find out as to who is the
person who can be eligible to conduct the said appeal transposing as appellant and also to
submit a report. It is not the case of the third respondent in the appeal that he is also
claiming any right under these Wills even though he may make his claim that in the absence
of both the Wills, as one of the legal heirs, he will be entitled to inherit the properties
jointly. In these circumstances, whether the counsel has represented him in the trial Court
in I.A.No.460 of 1995 in the enquiry regarding the genuineness of the said Wills is not a
material factor for deciding the issue involved. In this view of the matter, the objection
raised by the third respondent seeking direction to remand the matter once again to
the trial Court for submitting fresh findings after hearing him, cannot be accepted for the
reason that such an exercise will not be of any use in respect of the decision about the
genuineness of the Wills, Exs.A-1 and B-4. In view of the same, the claim of the third
respondent is rejected.
21. Mr. V.T. Gopalan, learned senior counsel appearing for the appellants in both the
appeals has chosen to raise a preliminary issue about the limitation for filing suit for
partition by the plaintiff. According to him, at the time when Ex.A.1-partition deed
was entered on 21.10.1959, in which the second and third defendants have been allotted
some properties along with properties allotted to Kutty Thevar and Karuppiah Thevar,
who is the brother of the first defendant. The plaintiff was a minor and he became major
in 1966; the third defendant became major in 1964 and the second defendant attained
majority in 1962 and the plaintiff, who has attained majority in 1966 has chosen to file
the present suit on 29.03.1982, which is 16 years after his attainment of majority and
therefore, according to the learned senior counsel, the suit should be dismissed as barred
by limitation.
22. Even though this point was not raised as an issue before the Court below and the
question of limitation is a mixed question of fact and law, according to the learned senior
counsel, since the facts relating to the period of attainment of majority by the plaintiff
and other factors are almost admitted and they are also found by the trial Court in
evidence, what remains is the legal point regarding the maintainability of the suit as
per the Limitation Act. He would submit that either by applying Article 59, which
relates to the cancellation of deed by way of recession, the period of limitation is three years
from the date of knowledge, and even by applying Article 110 of the Limitation Act, the
person who is excluded from the family and who will have the right, the period of
limitation is 12 years from the period of knowledge of exclusion and therefore, according to
him, by operation of law, the suit is barred by limitation.
23. According to the learned senior counsel, the mixed question of fact and law in the
present context can be agitated in the appeal and if the point of limitation is taken into
account, there is an error apparent on law, and in support of his submissions, he would
rely upon the judgment of the Supreme Court rendered in Burmah Shell Co. v. Belgaum
Municipality, AIR 1963 SC 906, apart from the judgment in the case of L.Sundaram
and another v. Lakshmanan (died) and others, 2003 (2) L.W.163. He would submit that
on the analysis of the entire records, it should be clear that the plaintiff, who has become
major in 1966 was aware of his exclusion from the family and since the first defendant
being the father and guardian has signed the partition deed in 1959 under Ex.A1 on
behalf of the plaintiff, the knowledge of the first defendant is deemed to be the knowledge
of the plaintiff. He placed reliance on the Division Bench decision of this Court in Sri
Gajapati Narasimha Deo Garu v. Sri Gajapati Krishnachendra Deo Garu, 1919 Vol.37
MLJ 256. He would further submit that in respect of the third defendant, who is given a
share under Ex.A1 partition deed, if the share given to him is not adequate on the basis
that there should be equal partition, he should have raised the same within 3 years from the
date of his becoming major. He would further submit that the third defendant being a
party to the document, who is given a share cannot claim a partition, except to claim a relief
to set aside the earlier partition deed.
24. Apart from the said preliminary arguments regarding the maintainability based on
limitation, on merits also the learned senior counsel would submit that even before the
partition in 1959 under Ex.A1, there is no evidence to show that the 1st defendant’s father
Kutty Thevar was doing joint business and purchased the properties as joint family
properties and the plaintiff who should establish by pleadings and evidence that a joint
family existed before the partition in 1959, has failed to plead and prove the same. On the
other hand, there are ample evidence to prove that it was the first defendant’s father
Chinnaiah Thevar who earned all moneys. He would submit that the existence of joint
family before 1959 partition with particulars has neither been pleaded, nor proved
especially when the categorical stand of the 1st defendant is that except the vacant land,
there was no ancestral property whatsoever from whose income his father Chinnaiah
Thevar could have purchased other properties.
25. The learned senior counsel would further contend that even assuming that there
was a joint family in existence, such joint family character comes to an end after the
partition that has been effected in the year 1959 under Ex.A1. According to him, the trial
Court has wrongly come to the conclusion that even though Ex.A1 partition deed has been
executed, the same has not been given effect to which is based on assumption. He would
submit that admittedly as per Ex.A1 partition deed, the first defendant’s brother
Karuppiah Thevar who was examined as P.W.5 has got a separate share apart from the
shares allotted to Kutty Thevar’s branch and the remaining properties have come to the
hands of the 1st defendant and defendants 2 and 3 and they were in enjoyment of the
respective shares, and it was only the plaintiff who was excluded from the partition, and
therefore it cannot be said that Ex.A1 partition deed was not given effect to. He would
further submit that in spite of Ex.A1 partition deed, if the plaintiff still contends that there
was a joint family, the issue of re-union is a question of fact to be pleaded and proved and
therefore by relying upon the judgment of this Court rendered in Venkataramayya v.
Tatayya, 1943 (2) MLJ 83, and the judgment of the Apex Court in Bhagwan Dayal v. Reoti
Devi, AIR 1962 SC 287, he would submit that in that aspect, the suit is devoid of any
merit. He would further submit that the plaintiff himself indirectly admits Ex.A1 by which
Kutty Thevar and the 1st defendant’s brother Karuppaiah Thevar have been allotted
shares, but says that the 1st defendant’s branch alone continued to be joint to escape from
the Land Reform Legislation. Except this, there are no other pleadings. On the other
hand, there are abundant records to show that the properties were separately enjoyed by
defendants 1 to 3. Therefore, the finding that Ramanathan branch alone continued to be
joint in spite of Ex.A1 partition deed, according to him, is not correct. He would submit
that to prove joint family, the plaintiff has brought four witnesses, out of whom, P.W.3 was
opposed to the first defendant in respect of some purchase of properties and P.W.4 was the
father-in-law of the 3rd defendant. On the other hand, P.W.2, who is said to be a
panchayatdar has admitted that there was a division in the first defendant’s family. He
would also submit that P.W.5, another witness examined on the side of the plaintiff admits
that he has given particulars to the plaintiff for filing the suit and the parties are in
enjoyment of their respective shares from 1959 onwards. That apart, he would submit that
there have been exchange of properties between the 1st defendant and 7th defendant
and 2nd defendant and 7th defendant which were done with the knowledge of the plaintiff
and the 3rd defendant under Exs.A9 and A8 and the 1st defendant under Exs.A3 to A5
purchased properties from his own money. The learned senior counsel has also contended
that in one of the documents executed by 7th defendant, the property allotted to the 2nd
defendant has been shown as boundary and the 2 nd defendant has also produced various
documents to show that he has got public records transferred in his name in respect of the
properties allotted to him. He would also submit that the very fact that the plaintiff and the
3rd defendant have executed power of attorney in favour of 1st defendant in the years 1970
and 1972 under Ex.B10 and A-82 shows that there has been a division. Placing reliance upon
on some of the letters marked as Exs.A-74 to A-78, A-84 and A-85 wherein there is a
reference to ‘our lands’ and also the voters’ list Ex.A-81 and the letter written by the father
to the sons wherein the term ‘our family’ is used, the trial Court, taking these isolated facts
into consideration, has passed a decree of partition by presuming that there is a joint
family and according to the learned senior counsel for the appellants, the judgment of the
trial Court is not on proper evidence. The learned senior counsel would also submit that after
the death of the 1st defendant the claim of the 2 nd defendant under a Will executed by him
dated 2.9.1985 was considered to be genuine by the learned trial Judge by way of finding
as per the directions of this Court. He would submit that the trial Court in that finding has
clearly found that the Will, which has been marked as Ex.A1, stood proved in
accordance with law and that the examination of one of the attesting witnesses is sufficient
to prove the Will by placing reliance on the judgment of the Supreme Court rendered in
M.S.P. Rajesh v. M.S.P. Raja and others, 1994 (1) MLJ 216 and Palanivelayutham Pillai v.
Ramachandran, 2000 (6) SCC 151. On the other hand, the Will produced by the 4th
defendant dated 24.03.1995 has been proved to be a forgery. Therefore, according to the
learned senior counsel, the trial Court has not decided the issues in accordance with law
and the decision is mostly on surmises and liable to be set aside.
26. On the other hand, Mr.G.Rajagopalan, learned senior counsel appearing for
1st respondent in the appeals (plaintiff in the suit) would submit that as far as the
preliminary issue, viz., the point of limitation is concerned, the same was not raised at
any point of time by the 1st and 2nd defendants and even in the grounds of appeal before
this Court the issue has not been raised and therefore, the appellants cannot be permitted
to raise the issue of limitation for the first time. According to the learned senior
counsel, even by applying Article 110 of Limitation Act, there must be clear proof of
exclusion of one of the joint family members and this fact has not been pleaded by
defendants 1 and 2. Therefore, according to him, if the claim of the 1st and 2nd defendants
is the exclusion of plaintiff, it must be first proved that there existed a joint family and then,
it must be pleaded and proved as to the exclusion of the plaintiff and that exclusion must
be with the knowledge of the plaintiff and after 12 years of knowledge the limitation
would come into effect and therefore, according to the learned senior counsel for 1 st
respondent, there is absolutely no ground to set aside the judgment of the trial Court by
applying the period of limitation. He would also further submit that inasmuch as
the 1st respondent/plaintiff is not even a party to Ex.A1 partition deed, the question of
filing a suit to set aside the said document does not arise. He would insist that the exclusion
of the plaintiff from the joint family has not been proved especially in the circumstances
that under Ex.A.1 shares have been given to family members, who are not entitled to as per
law. He would submit that it is true that the knowledge of the guardian can be taken as
the knowledge of the minor unless and until the guardian is acting on behalf of the
minor, but under Ex.A1 partition deed, the plaintiff/first respondent is not a party and
therefore, it cannot be said that he was represented by the father. He would further submit
that when originally the first defendant himself has not raised the plea of limitation,
the second defendant, who has now entered into the shoes of the first defendant by way of
transposing himself as the appellant cannot raise a new plea of limitation and the
transposed appellant cannot give a go-bye to the pleadings of the first defendant by pleading
a stand contrary to the stand taken by the party on whose behalf he is continuing the appeal.
He would also submit that the knowledge of the first defendant cannot be deemed to be the
knowledge of the plaintiff, especially when there is no pleading by the first defendant.
He would submit that the trial Court has clearly found that there was joint family nucleus
which generates income to purchase properties under Exs.A.11, A.33 and Exs.A.44, A.76,
A.87, A.85 and A.10. He would also submit that simply because the first defendant has
sold the properties under Ex.A.10, wherein all the parties have joined in execution, it
cannot be stated that the plaintiff is not entitled to a share. He would also submit that
the first defendant, on remand of the matter for the purpose of finding about the Wills, has
filed a Will dated 20.08.1981 marked as Ex.A.2, wherein the second defendant has
admitted that the joint family continued and plaintiff, first defendant and third defendant
constituted a Hindu joint family. Therefore, according to the learned senior counsel, there
was no question of any limitation.
27. The learned senior counsel would further submit that the trial Court on each and
every issue has clearly found that the partition deed Ex.A1 executed in the year 1959 has
never been acted upon and even after that period the properties were enjoyed by the
plaintiff, defendants 1 to 3 jointly and in fact it is admitted that the plaintiff and third
defendant have contributed some of the moneys.
28. The third respondent R. Seetharaman, who has appeared as party-in-person
while adopting the arguments made by the learned senior counsel for the first respondent,
would mainly contend that the first defendant in the suit has been under the control of
the second defendant. His main contention is that Ex.A1 Will produced after remand for
giving a finding by the trial Court is procured by the second defendant, since the first
defendant has been under his control. According to him, under Ex.A1 registered
partition deed dated 21.10.1959, the 2nd defendant was allotted 113 acres and he was allotted
2.75 acres and nothing was allotted to the plaintiff and the partition itself was done for the
land ceiling purpose. He would also state that he came to know about the partition for
the first time only after 20.08.1981 when the 1st defendant has executed a Will. According
to him, the power of attorney given by him to his father in Ex.B1 dated 27.06.1965 was
only to bind him in dealing with the joint family properties and business. He was also
relying upon some of the letters executed by the 1st defendant to him marked as Ex.B3 in
which the 1st defendant is stated to have informed him that the 2 nd defendant’s wife has
not treated him properly. He would submit that when it was the case of the 1st and 2 nd
defendants that there was a family arrangement in 1955 and properties were divided and
thereafter the same was put in writing in 1959, there is no necessity for the 1st and 2 nd
defendants to include the plaintiff as well as the 3 rd defendant as executants in Ex.A-10
sale deed dated 27.3.1967. He would also repudiate the claim of the 1 st defendant that the
Avanam building, rice and paddy business and FCI Agency are separate properties and
business of the 1st defendant. By relying upon the letters written by the 1st defendant, he
would submit that the plaintiff and himself during their marriage have received dowry
and the same has been given to the 1st defendant at that time. While admitting that the
1st defendant has purchased 1.13 acres of land in Pulichangadu village in the name of the
2nd defendant’s wife in 1970, he would state that the said purchase was made by the 1st
defendant only to keep her happy since she has not behaved properly during his life time.
He would submit that after cancellation of the general power given to the 1st defendant,
the plaintiff and first defendant have purchased various properties in the names of their
respective wives. He has also relied upon Exs.A-19, 11, A-33 and A-44 to substantiate his
contention that even after the partition deed in the year 1959 under Ex.A1, the joint
family continued.
29. After hearing the arguments of the learned senior counsel for the appellants and
the first respondent and also the submissions of the 3rd respondent who appeared in
person and on going through the judgment of the trial Court, apart from various records, the
following points arise for consideration in this appeal:
(1) Whether the suit filed by the plaintiff is hit by the period of limitation and
therefore liable to be dismissed on the said point as a preliminary
issue ?
(2) Whether the findings of the trial Court that even after Ex.A1 partition
deed dated 21.10.1959 the joint family between the 1st defendant and
his sons defendants 2 and 3 and the plaintiff continued, and if so,
whether the properties in respect of which the right has been given to the
plaintiff as well as to 3rd defendant are liable for partition?
30. Point No.1: At the outset, the reference to the pleadings as well as the grounds
of appeal shows that the said point relating to limitation has not been raised earlier and
the same is raised for the first time while arguing the appeals. As for the age of the
plaintiff and the 3rd defendant, at the time of execution of Ex.A1, there is no dispute. Even
the trial Court has found that at the time of execution of Ex.A1, the plaintiff, defendants 2
and 3, who are the sons of the 1st defendant were minors. It is also clearly stated that the
plaintiff became major in 1966; the second defendant in 1962 and the 3rd defendant in 1964,
as it is found by the trial Court. The execution of Ex.A1 is not disputed. The case of the
plaintiff and the 3rd defendant was that Ex.A1 was not given effect to. A reference to
Ex.A1 partition deed shows that the said partition was effected between 16 persons
including the 1st defendant being the son of Chinnaiah Thevar for himself along with his son
Ramamurthi, the 2nd defendant who was at that time 14 years old, another son Seetharaman,
namely, 3rd defendant, who was at that time 12 years old, apart from Karuppiah Thevar,
who is the brother of the 1st defendant Ramanathan and the legal heirs of Chinniah
Thevar’s brother Kutty Thevar. Therefore, in the said document, the plaintiff’s name
does not find a place. The said document states that there was an oral partition even before
Ex.A1 document in the year 1955 itself, by which the properties were divided and enjoyed
separately by the parties. In the said Ex.A1 document, B-Schedule property was allotted to
the 1st defendant, while C-Schedule property was allotted to the 2nd defendant; G-Schedule
was allotted to the 3rd defendant and B-Schedule property was allotted to Karuppaiah
Thevar, who is the brother of the 1st defendant, apart from the share given to the other
co-sharers. In addition to that, in view of the allotment of shares, 1st defendant and his
brother Karuppaiah Thevar were directed to contribute certain amount. It is also stated
in the said document that after the oral partition effected in the year 1955 whatever
properties purchased in individual names should remain as individual properties. It is
also stated that the properties which are left out shall be enjoyed by partition between the
1st defendant and the Karuppiah Thevar’s family. Therefore, the contention of the learned
senior counsel for the appellant in these appeals is that when at the time of execution of
Ex.A1 partition deed, the plaintiff was a minor and the defendants 2 and 3 who were
also minors at that time, were allotted shares, but the plaintiff was not allotted any
share, meaning thereby that in that partition, the plaintiff was given up. His contention is
that admittedly when the plaintiff who was a minor at the time of execution of Ex.A1 became
major in 1966, he should have had knowledge about Ex.A1 partition deed in 1966 itself, but
he has chosen to file the suit for partition only on 20.3.1982 and therefore, the suit should
be treated as barred by limitation. The pleadings in respect of the said Ex.A1 partition
deed dated 21.10.1959 raised by the plaintiff in the plaint is as follows:
“The plaintiff now learns that in reducing the said family arrangement in
writing on account of Land Reforms Legislation, by means of a partition deed
dated 21.10.1959 the total extent, of properties got by each group or branch
had been kept up, but it has been further split up and given in separate schedule
in the name of defendants 1 to 3 for land ceiling purposes. The plaintiff is not a
party to that document. However, there was no actual division either in the
status or with reference to properties as between the first defendant and his sons.
The division was only between first defendant and his brother and Kutty
Thevar’s branch on the other hand. Plaintiff and defendants 1 to 3 continued
to be members of the Hindu coparcenary.”
Therefore, the plaintiff, while admitting the family arrangement of the year 1955,
would state that he came to know about the 1959 partition only at the time of filing the suit.
Therefore, according to him, he had the knowledge about Ex.A1 only at the time of filing
the suit.
31. In the written statement, the 1st defendant states that at the time of executing
Ex.A1 in 1959, the plaintiff was a minor and therefore, as a guardian and father he had a
right to represent the plaintiff as a patria potestas and also to represent 2nd and 3rd
defendants to allot properties in their favour. The specific statement in that regard by
the 1st defendant in the written statement is:
“In the year 1955, at the time of the family arrangements in the presence of
defendant 1 and uncle of the plaintiff, the plaintiff was a minor about 7 years old
and when the said arrangement was reduced in writing in 1959, this defendant
acted as a patria Potestas to represent his minor son and he had every right
to agree for the allocations to defendant 2 and defendant 3 as the plaintiff was
only a ward under protection and care of this defendant”.
32. As it is seen from Ex.A1 and also it is admitted that defendants 2 and 3 were
also minors at the time of execution of Ex.A1 in 1959, but they were allotted some of the
properties, whereas in respect of the plaintiff alone, who was also minor, represented by
the 1st defendant as guardian, no property was allotted. It is the case of the 1st defendant
that the plaintiff was under his protection and care.
33. However, the 2nd defendant in his written statement has stated that under 1959
settlement by which he was allotted the properties and the said properties have been
taken over by him and he has been in continuous possession from the said date and in any
event he has perfected title by adverse possession and the plaintiff is ousted to have any
claim of right over the property. While stating so, the 2nd defendant states that:
“This defendant in any event has perfected title by adverse possession and
ouster in respect of the separate properties of this defendant and the claim of the
plaintiff is barred by limitation”.
34. The plaintiff while giving evidence as P.W.1 has not chosen to state anywhere
as to when he came to know about Ex.A1 partition deed dated 21.10.1959. On the other
hand, the close analysis of his entire evidence shows that he had knowledge about the
family arrangement in the year 1955 and subsequent partition in the year 1959 and also
about all the subsequent documents. He has stated at one place,
He would further state,—
He states in his cross-examination that,—
Therefore, the above said evidence of the plaintiff clearly establishes that he had
knowledge about Ex.A1 1959 document partition deed at least from the date when he has
become major in the year 1966. Even though it is true that the plaintiff has not been
allotted property under Ex.A1 partition deed while the 2nd and 3rd defendants have been
allotted properties, the question that arises is whether his right of partition will survive 16
years after his knowledge about his ouster from the joint family properties. As correctly
pointed out by the learned senior counsel for the appellants, the factual position is clear,
but the only question remains to be answered is the legal issue as to whether the plaintiff
has come to the Court within the period of limitation as prescribed under the Limitation
Act, 1963?
35. Section 3(1) of the Limitation Act, 1963 specifically states that even if the period
of limitation is not pleaded as a defence, the suit instituted after the period of limitation
shall be dismissed subject to Sections 4 to 24, dealing with the time during which the Court
is closed.
“Section 3(1) of the Limitation Act: 3. Bar of limitation.—(1) Subject to the
provisions contained in Sections 4 to 24 (inclusive), every suit instituted,
appeal preferred, and application made after the prescribed period shall be
dismissed, although limitation has not been set up as a defence.”
Regarding the person who has legal disability like minor, insanity or idiocy, Section
6 of the Limitation Act says that the period of limitation shall run after the disability is
ceased, which means that in respect of a minor, the limitation starts when he becomes
major. Section 6(1) reads as under:
“Section 6. Legal disability.—(1) Where a person entitled to institute a suit or
make an application for the execution of a decree is, at the time from which the
prescribed period is to be reckoned, a minor or insane, or an idiot, he may
institute the suit or make the application within the same period after the
disability has ceased, as would otherwise have been allowed from the time
specified therefor in the third column of the Schedule.”
Section 8 of the Limitation Act, which is an exception to Section 6, gives three
more years time for the period of limitation from the cessation of disability in the following
words:
“Section 8. Special exceptions.—Nothing in Section 6 or in Section 7 applies to
suits to enforce rights of pre-emption, or shall be deemed to extend, for more
 than three years from the cessation of the disability or the death of the person
affected thereby, the period of limitation for any suit or application.”
Part 4 of the First Division in the Schedule of the Limitation Act, viz., Article 59
deals with the suit, “to cancel or set aside an instrument or decree or for the rescission of
a contract. The period of limitation for the same is stated to be three years from the time
when the facts entitled the plaintiff to have the instrument or decree cancelled or set
aside or the contract rescinded first become known to him”.
36. By applying the said article, for cancelling Ex.A.1 partition deed dated
21.10.1959, for the reason that the plaintiff was not a party to it, the plaintiff who attained
majority and became major in 1966, in the light of Sections 6 and 8 of the Limitation Act,
should have filed the suit in the year 1972, since he had knowledge on the date of his
majority.
37. If the grievance of the plaintiff is that under Ex.A1 he has been excluded from
joint family properties and therefore he has got a right of enforcing his share, in such matter,
Article 110 states “by a reason excluded from a joint family property to enforce a right
to share thereunder”, the period of limitation for filing the suit is 12 years from the time
“when the exclusion becomes known to the plaintiff”. By applying this article and based
on the pleadings and evidence, the plaintiff had the knowledge about his exclusion from
the joint family under Ex.A1 partition deed, when he became major in 1966, and by a
conjoint reading of Sections 6 and 8 along with said Article by giving the benefit of said
exemption under Section 8, it is clear that the plaintiff should have filed the suit in the
year 1981, whereas the present suit was filed on 20.03.1982. Therefore, without even
going into the other contention raised by the learned senior counsel for the appellant
about the knowledge of guardian which could be imputed to that of the minor, I am of the
considered view that on the legal issue of filing of the suit, since the factual issue is very
clear based on the pleadings and evidence, the suit for partition filed by the plaintiff,
claiming a share knowing that he has been excluded from the joint family properties is
certainly barred by limitation.
38. As rightly pointed out by the learned senior counsel for the appellants, when
the 1st defendant being the father and guardian of the plaintiff, has signed Ex.A1 partition
deed dated 21.10.1959 even if it does not expressly state that he enters into such partition
deed in the representative capacity on behalf of his minor son, the capacity can be
presumed unless it is shown that there is conflict between him and his son. This was the
view taken by this Court in the judgment rendered by K.Sampath,J. in L. Sundaram and
another v. Lakshmanan (died) and others, 2003 (2) L.W.163, wherein the facts are almost
similar, and after analysing the documents and referring to a catena of decisions, the learned
Judge has specifically held as follows:
“25. Though the second defendant might not have stated in Ex.B-1 that he was
executing the document for himself and on behalf of his sons, the principle is
well settled that where a father enters into any transaction affecting the family, he
need not expressly state that he enters into it in his representative capacity. This
capacity will ordinarily be presumed unless it can be shown that there is a
conflict of interest between him and his sons. Thus, Ex.B-1 must be deemed to
be binding on the plaintiffs and the third defendant as well, subject to the
renunciation being for consideration representing the value of the share of the
 branch of the member renouncing. It can be considered as a partition of his
branch including the interests of his sons in the joint family property.
26. Ex.B-1 is dated 25.5.1956 and it has been found to be a true and genuine
document, under which the second defendant validly released the rights of his
joint family in the joint family properties in favour of the first defendant, who
had undertaken to discharge the family debts. The learned counsel for the
appellants fairly stated that the appellants are not challenging the finding that
Ex.B-1 was not obtained by fraud and misrepresentation. The plaintiffs have not
taken steps to challenge the release under Ex.B-1. Once the release is accepted
as a true and valid document binding on the plaintiffs and defendants 2 and
3, then everything else will follow. As regards limitation, the period within
which Ex.B-1 should have been questioned is 12 years from the date of its
execution. That would take us to 1968. The present suit came to be filed only in
1976. There is also nothing to show that the joint family continued even
after Ex.B-1, or that anybody, other than the first defendant and the possible
exception of P.W.5, had anything to do with the joint family properties. Within
a week from the date of Ex.B-1, the first defendant began exercising absolute
rights of ownership by creating a mortgage under Ex.B-11. Exhibits B.12 and
B.13 show that there were claims against the quondam joint family and that
they were taken care of by the first defendant. Ex.B-14 dated 30.05.1962 is a
receipt issued by Ranga Reddiar to the first defendant apparently evidencing
repayment of joint family debt. This is followed by sale deeds originals of
Exs.A.9 to A.11 in 1961,1962 and 1964. The first defendant has dealt with the
properties as absolute owner. Counsel’s argument that there was no
disruption of joint family and therefore Article 110 of the Limitation Act will
alone apply cannot be accepted. There has been total exclusion of the second
defendant and his sons, the plaintiffs and the third defendant. The exclusion was
known to the second defendant from day one. His knowledge as knowledge of
his then minor sons also. There is also authority for the position that you can
impute knowledge to the minor and it can be availed of as being knowledge
even before majority for it is not as if law prohibits recognition of the
knowledge of any person during his minority. Only thing is, his incapacity to
take action immediately is recognised and he is shown concession in the matter
of time for taking action. The Privy Council in Kalyandappa v. Chambasappa,
AIR 1924 PC 137, has endorsed this view in the following manner:
“The view that you cannot impute knowledge to a minor is certainly not in
accordance with the facts of human nature.”
Be that as it may, the first plaintiff was 11 years old in 1956. He must have
attained majority in 1963. The suit ought to have been filed in 1975. The suit
filed in1976 is clearly barred by limitation. “
39. On the pleadings, it is also seen that it is not the case of the plaintiff that 1959
partition deed marked as Ex.A-1 is vitiated by fraud or misrepresentation or by any other
factors or the first defendant was having any ill motive against him. On the other hand,
it is the case of the plaintiff that even though Ex.A1 document was executed in the
year 1959, the same was not acted upon. For the purpose of deciding about limitation, the
question to be considered is about the knowledge attributable to the plaintiff who was
minor at the time of execution of Ex.A1 and attained majority in the year 1966. On the
abovesaid facts and evidence which I have narrated above, especially when the facts are
not in much dispute, I have re-settled the issues by framing the following issue:
“Whether the suit for partition filed by the plaintiff after the period of limitation
enunciated under Section 3 read with Sections 6 and 8 and Article 110 of the
Limitation Act is maintainable ?”
40. On the abovesaid issue which I have resettled, for the reasons stated above, I am
of the considered view that instead of referring the matter to the trial Court once again, I
proceed to answer the same as per Order XLI, Rule 24, C.P.C.
41. In these circumstances, the contention raised by the learned senior counsel
appearing for the 1st respondent/plaintiff that for application of Article 110, it must be
proved that it is joint family property and that a person who claims a share must be
excluded from claiming any right from the joint family property and the exclusion should
be made known to the party and 12 years has to be lapsed only from the date of such
knowledge, has to be considered. On the facts of this case, it is clear that the plaintiff was
aware of Ex.A1 partition deed and the plaintiff who claims to be a member of joint
family from which he was totally excluded and therefore, there is no difficulty to come to
the conclusion that after the lapse of 12 years he loses his right. As I have stated earlier, it is
not even his pleading that the 1st defendant, his father has committed fraud in excluding the
plaintiff from the joint family property. On the other hand, as per the legal dictum, the 1st
defendant being the father and guardian was certainly entitled to act on behalf of the
plaintiff and inasmuch as such act of the 1st defendant was not questioned by the plaintiff,
based on the Ex.A1 partition deed, there is absolutely no difficulty to come to the
conclusion that the suit is barred by limitation.
42. Point No.2: —Even assuming that the knowledge of the plaintiff about Ex.A1 is
proved to have occurred only at the time of filing of the suit, which fact as I have stated
earlier is not in issue in this case, the next point in this case to be considered is as to
whether the plaintiff has proved that the partition effected in 1959 under Ex.A1 has not
been acted upon. In this regard, the law is well settled that the presumption is that the family
is joint in nature and the presumption is not that joint family owns properties, which
is a matter for proof. Therefore, mere possession of properties by the elder member of the
family does not lead to a presumption that they are joint family properties. It is for the
person who alleges that all subsequent purchases were made out of the nucleus available in
the hands of the kartha to plead and prove that the nucleus in the hands of the kartha was
such of substantial nature in yielding income leaving surplus in the hands of kartha which
would have been utilised for the subsequent acquisitions, and therefore, the substantial
and adequate nucleus in the hands of kartha must be pleaded and proved and it is only
after such pleading and proving is effected the onus is shifted onto the kartha to prove
that no funds is utilised for the acquisition. That was the judgment rendered by the
Division Bench of this Court in Ranganayaki Ammal v. V. Balakrishna Naidu, 1978 (1) MLJ
56 and the same is followed by R.Balasubramanian, J. in Ranganayaki Ammal v.
V.Balakrishna Naidu, 2002 (3) L.W. 809.
43. It is the case of the plaintiff that in 1955 family arrangement there was a division
between the families of Chinniah Thevar and Kutty Thevar and subsequently in the year
1959 under Ex.A1 the family arrangement got materialised into a registered written
partition. According to the plaintiff, the said partition was entered for splitting up of the
properties and giving the same to the defendants 1 to 3 for land ceiling purposes. In other
words, according to the plaintiff, the said 1959 partition in so far as it relates to the family
of Chinniah Thevar which included the 1st defendant Ramanathan Thevar and his brother
Karuppiah Thevar who was examined as P.W.5, was effected only for the purpose of land
ceiling and Ex.A1 was not given effect to.
44. On the other hand, it is admitted by the plaintiff himself that under Ex.A.1 the
share given to Kutty Thevar has been acted upon. In fact, the share allotted to the brother
of the first defendant, viz., Karuppaiah Thevar, who was examined as P.W.5 itself is
admitted to have been given to him and his legal heirs and therefore, the plaintiff’s
contention that the properties allotted to the first defendant’s father Chinnaiah Thevar in
which defendants 1 to 3 were given shares were divided for land ceiling purposes is, on the
face of it, not only contradictory, but also unacceptable.
45. Even assuming that in Ex.A.44 power of attorney dated 25.11.1946, which was
given by Chinnaiah Thevar to his brother Kutty Thevar, the said Chinnaiah Thevar has
stated that they constituted a Hindu undivided family and Chinnaiah Thevar being the
elder member was managing the properties, by virtue of Ex.A.1 partition entered on
21.10.1959, by which admittedly, Kutty Thevar’s share was given to his family members,
and the first defendant and Karuppiah Thevar were also given shares, the joint family
status between Chinniah Thevar and Kutty Thevar has come to an end. Therefore, if
the case of the plaintiff is that after such categorical position, the first defendant along
with defendants 2 and 3 and plaintiff have joined among themselves as a joint family, it
is the onus on the part of the plaintiff to prove that in spite of the same the joint family
status among them continued. In such circumstances, the finding by the learned Judge that
the joint family status between the plaintiff and defendants 1 to 3 has continued based
on the power of attorney executed by Kutty Thevar in favour of his brother Chinnaiah
Thevar on 25.11.1946 marked as Ex.A.44, which is much before the partition deed
marked as Ex.A.1 dated 21.10.1959 is not sustainable. The assumption by the learned
Judge that it is the case of the plaintiff that 1959 partition deed is not true and the same has
not been given effect to is not even pleaded by the plaintiff. On the other hand, the specific
pleading of the plaintiff is that, “the division was only between first defendant and his
brother (Karuppaiah Thevar) and Kutty Thevar’s Branch”. It is also the specific pleading of
the plaintiff that, “plaintiff and defendants 1 to 3 continued to be members of the
Hindu coparcenery.” Therefore, it is not even the case of the plaintiff that 1959 partition
is not true and not acted upon. In such circumstances, when it is the specific case of the
plaintiff that the joint family continues between defendants 1 to 3 and the plaintiff, a
legal obligation is cast on the plaintiff to plead and prove that there existed a joint
family. It is unfortunate that to come to the conclusion that there was no division in the
joint family, the learned trial Judge has not only relied upon Ex.A.44 which was much
before Ex.A.1 partition deed in 1959, but also Ex.A.81, which is a voter’s list. A
reference to the deposition of P.W.1 shows that there is absolutely no evidence that after
the partition deed defendants 1 to 3 and the plaintiff have been living as a joint family. This
is apart from the fact that the plaintiff has not given any reason as to how the joint family
continues, in spite of the fact that under Ex.A1, defendants 1 to 3 have been given separate
properties especially when it is admitted that the properties have been divided in respect of
other joint owners and they have been enjoying the properties as per the division.
46. It is admitted that the plaintiff has executed a registered power of attorney in
favour of his father 1 st defendant on 10.04.1972 marked as Ex.A.82. Eventhough the
plaintiff as P.W1 would say.—
a reference to Ex.A.82 specifically states the reason for executing the power of
attorney as follows:
 In the said power, the plaintiff has nowhere stated that there has been any existence
of joint family consisting of the plaintiff and the 1st defendant, and it is only to manage
the property he has authorised the 1st defendant.
47. It is seen that under Ex.A8 document filed by the plaintiff the 2nd defendant and
the 7th defendant who is none else than the son of Karuppaiah Thevar (brother of 1 st
defendant) who has given evidence for the plaintiff as P.W.5, have entered a registered
deed of exchange dated 27.6.1965. Likewise, under Ex.A9 registered deed of exchange
dated 27.6.1965, the 1st defendant and his brother Karuppaiah Thevar have exchanged the
properties among themselves. The plaintiff in the evidence specifically admits that the
said exchange between the 2nd defendant and 7th defendant entered in 1965 was entered
based on the partition deed dated 21.10.1959 and as per the exchange, the properties have
been transferred to the concerned parties, namely, 2nd defendant and 7th defendant
respectively. The evidence in this regard by the plaintiff is as follows:
48. While so, the father of the 7th defendant, namely, Karuppaiah Thevar-P.W.5, who
is none else than the brother of the 1st defendant, has chosen to state as if the partition
under Ex.A1 between him and 1st defendant apart from Kutty Thevar was not effected
among the 1st defendant and his children, which is quite improbable and stated with some
motive. In respect of one of the properties received under Ex.A1 partition deed, the 7th
defendant has exchanged the same with the 2nd defendant, who is the son of the 1 st
defendant and hence, it is not understandable as to how P.W.5 can now say as if the 1st
defendant and his children have not received the properties.
49. P.W.5 in his evidence, while deposing about Ex.A8, has chosen to state as
follows:
On the other hand, a reference to Ex.A8 clearly shows that the properties were
obtained by the parties under the registered deed of partition dated 21.10.1959 the
contents of the said document are as follows:
Therefore, it is clear that the partition Ex.A1 was in fact acted upon, as admitted by
P.W.5 and as found in the documents Exs.A8 and A9. It is in this context, the
contention of the learned senior counsel for the appellants that P.W.5 is responsible for
kindling the dispute in the family cannot be slightly brushed aside. The said
contention is fortified by the evidence of P.W.5, who states,
50. In this background the evidence let in on the side of the plaintiff, namely, P.W.2
one of the panchayatdars is to be seen. He has clearly stated that he does not even know
about the partition between first defendant and his brother Karuppiah Thevar. His evidence
is,—
Likewise, the evidence of P.W.3, who was allegedly having some dispute with the
1st defendant is also not credible. However, he has admitted that the 2nd defendant was
doing agricultural operations. Similarly, the evidence of P.W.4 who is admitted to be
the father-in-law of the 3 rd defendant cannot be relied upon. He specifically admits in the
cross-examination that the 3rd defendant is his son-in-law and he has married his daughter.
Inasmuch as the 3rd defendant joins with plaintiff in claiming a share, his evidence cannot
be treated as independent in nature.
51. A reference to the contents of Ex.A-1 which clearly confers the property to the
first defendant, the second defendant and third defendant demarcating the same in the
form of schedules and stating that the respective properties should be received by the
concerned defendants shows that the evidence of P.W.5 that the purport of execution of
Ex.A-1 was only to effect partition in the family of Chinnaiah Thevar between the first
defendant and P.W.5 and there is no provision in the said document about the properties
given to the 1st defendant and his children is a total false statement. It is further
relevant to note that even Ex.A-6 partition deed between the first defendant and the said
P.W.5 Karuppaiah Thevar, also contains the recitals about the execution of Ex.A-1
specifically stating that the properties which were partitioned under Ex.A-6 were enjoyed
in common and other properties were divided. Further, even Ex.B-1 release deed dated
27.6.1965 executed by the said P.W.5 Karuppaiah Thevar in favour of the first defendant
shows that as per the family arrangement of 1955, joint family properties have been
divided and those who have been allotted shares are enjoying the properties independently.
All these factors go to show not only the factum of division of properties as per Ex.A-1
between the defendants 1, 2 and 3 but also the conduct of P.W.5 who has chosen to give
evidence even against the contents of the document.
52. P.W.4 Marimuthu is admitted to be the brother-in-law of P.W.5 and it is stated
that P.W.5’s sister’s daughter was married to the plaintiff. All these things show as to how
the plaintiff, P.Ws.5, 4 and 3 are closely related to each other. It is also seen under Exs.A-
3, 4 and 5 sale deeds dated 29.9.1959, 5.1.1960 and 29.9.1959 respectively that all the
documents are standing in the name of first defendant as purchaser. Further, Exs.B-54 and
B-55 which are the passport endorsement of the first defendant also show that in the
period between 1950 and 1958 and also 1958 and 1962, the first defendant was having
sufficient amount of Rs.13,638/- and Rs.26,845.25 which he has brought to India as it is
seen in the endorsement in the passport. It is also seen that even in the name of the third
defendant’s wife Janaki a property has been purchased on 24.7.1984 under Ex.B-109.
53. It is also relevant to point out that the 7 th defendant, who has obtained property
by the exchange from the 2nd defendant under Ex.A8 dated 27.6.1965 has in fact sold the
property under Ex.B112 on 11.11.1981 which clearly acknowledges the exchange deed
entered between him and the 2nd defendant. Similarly, in view of the clear contents of the
document under Ex.A8, the pleading in the plaint that Ex.A1 partition was executed only
for the limited purpose of giving the properties to the 1st defendant’s family is not
acceptable.
54. Therefore, the evidence on the side of the plaintiff is clear to show that
Ex.A1 partition deed has been acted upon between the 1st defendant and his brother
Karuppaiah Thevar as well as his father’s brother Kutty Thevar, besides the 1st defendant
and defendants 2 and 3. In such circumstances, the finding of the learned trial Judge that
the partition deed Ex.A1 was not acted upon has absolutely no basis. Therefore, I have
absolutely no doubt in my mind that after Ex.A1 partition deed dated 21.10.1959, the
partition has been given effect to between defendants 1 to 3 just as effected between 1st
defendant and his brother Karuppiah Thevar and his father’s brother Kutty Thevar, and the
findings by the learned trial Judge is clearly perverse. In such background, the properties
acquired by the 1st defendant as well as 2nd defendant in their respective names and the
sales effected by the 1st defendant cannot be held to be effected on behalf of the joint
family. It is therefore clear that the plaintiff was excluded in Ex.A1 partition deed by
his guardian 1st defendant and that exclusion was known to the plaintiff after he became
major in 1966 and in such circumstances, the present suit for partition without taking
steps to set aside the said partition deed dated 21.10.1959 marked as Ex.A1 is not
maintainable. Likewise, the 3rd defendant, who has consciously taken a share under
Ex.A1 partition deed cannot be expected to raise his plea of partition without assailing the
Ex.A1 partition deed.
 55. Further, on the entire factual situation, one can easily assess that there is no
evidence or proof of joint family between the plaintiff and the defendants 1 to 3 and that
they are owning properties jointly. As held by this Court in Parsam Venkataramayya v.
Parsam Venkataramappa, 1953 (1) MLJ 508:
“It is well settled that there is no presumption that a business carried on by a
member of a joint Hindu family is joint family business and it is for those who
set it up to establish it that though the business was carried on by an
individual member, it was the business of the family”.
In the absence of any evidence in this case, it can never be said that any joint family
is in existence between the plaintiff and the defendants 1 to 3. As far as the right of the
father, viz., 1st defendant to have a partition, he certainly had a right to enter into partition
whether the children are minors or majors and without their consent as it is not the case of
the plaintiff that there is any fraud or any vitiating factor has been effected by the first
defendant in depriving the right of the plaintiff to have a share.
56. I do not think that the plaintiff has got any right of partition even assuming that
the first defendant with certain fraudulent intention has deprived the plaintiff of his share
while giving shares to other sons viz., defendants 2 and 3. The partition viz., Ex.A-1 can
only be treated as voidable which can be set aside at the option of one of the joint owners
viz., the plaintiff herein, but the plaintiff has not exercised his option to declare such a
partition deed as not enforceable. Hence, the document is presumed to be valid in law.
The fact remains that though the said document is treated as voidable, the option is with
the affected party to challenge the same within a reasonable time and if such exercise is
not effected within the reasonable time, the validity of such document continues to remain
for ever. In M.S.M.M. Meyyappa Chettiar v. Commissioner of Income Tax, Madras,
1950 (2) MLJ 353, this Court has held as follows:
“Under the Mithakshara law the father has the undoubted right and privilege of
effecting a partition between himself and his sons, whether they are majors or
minors, without their consent. He may divide the properties physically or may
only bring about a division in status. This division may be between himself and
his sons or even between sons inter se. The partition so made however must be
fair and equal”
“ If the partition is unequal and unfair it is open to the sons if they are majors, to
repudiate the partition; but if they are minors, it is open to them to avoid
that partition by appropriate proceedings after they obtained majority. The
partition therefore will be good until it is set aside.
“Whether it is an alienation under the Hindu Law by a guardian on behalf of
the minor or a partition effected by the father in the exercise of his peculiar
power the transaction will be good until it is set aside; it is voidable and not
void. “
57. Further, the father’s right of entering into partition is reiterated in Venkata
Subramania v. Easwara Iyer, AIR 1966 Mad. 266, in the following words:
“The power of the father of a joint family to divide family property at any
moment during his life, provided he gives his sons equal share with himself, is
well established. The consent of the sons is not necessary for the exercise of
that power, the right of the father to serve himself and the sons inter se being
part of the patriae potestas that was recognised by the Hindu Law.“
 “The power of a father to effect division is subject to the distribution being
equal. If the distribution effected by the father is unequal or there has been fraud
in the division and it is vitiated by undue favouritism, the partition, effected
would be reopened and adjusted. But the partition is not wholly void. “
58. The said decision was approved by the Supreme Court in Apoorva Shantilal Shah,
HUF v. Commissioner of Income Tax, Gujarat-1, Ahmedabad, 1983 (2) SCC 155, holding
that the father as a patriae potestas is entitled to effect partition in the following words:
“It is recognised in ancient Hindu Law that in a joint family governed by
Mitakshara School, father in exercise of his superior right as father or of his
rights as patria potestas is entitled to bring about a complete disruption of the
joint family consisting of himself and his minor sons and to effect a complete
partition of the joint family properties even against the will of the minor
sons.”
59. Even assuming that some fraud has been played by the 1st defendant in the
execution of Ex.A-1, it was always open to the plaintiff to have the document set aside
within the period of limitation immediately after he had become major, which has not
exercised especially on the facts and circumstances which I have narrated earlier that there
are abundant evidence to show that he had knowledge about the partition even from the
beginning. The right of the son on attaining majority to have the partition set aside has been
confirmed by this Court in M.S.M.M. Meyyappa Chettiar v. Commissioner of Income
Tax, Madras, 1950 (2) MLJ 353, as follows:
“ If the sons happened to be minors at the time of partition, they can have the
partition set aside on their attaining majority. But it is equally open to the sons
to acquiesce in and accept the transaction (See 25 MLJ 188 and ILR 29 All
37). In other words, the transaction is not void but only voidable, at the option of
the sons and if the later seeks to stand by it or enforce its terms, it will not be open
to the father to plead any invalidity of the arrangement on the ground of the
inequality of the allotments.”
60. Therefore, I have no hesitation to come to the conclusion that the plaintiff and
the 3rd defendant cannot claim to be the members of joint family with the 1st and 2 nd
defendants. The law is well settled about the Hindu father to effect partition without the
consent of his minor sons, even in respect of the ancestral property and such partition is
binding upon the sons and it is only for the sons, who allege that the partition is unfair, to
set aside the same in the manner known to law. Therefore, the suit filed for partition
without declaration regarding the partition deed dated 21.10.1959 marked as Ex.A1 is
clearly not maintainable. Therefore looking at any angle I am of the considered view that
the learned Judge has committed a substantial error in granting decree for partition, on the
basis that the joint family status between the defendants 1, 2 and 3 and the plaintiff
continues and for the reasons stated above, the appeals are to be allowed.
61. The next point to be decided is about the basis for the findings of the trial
Court submitted pursuant to the order of this Court in C.M.P.No.11380 of 1995 in
A.S.No.768 of 1985. As I have stated above, pending the above appeals, the appellant in
A.S.No.768 of 1985 died and the appellant in A.S.No.974 of 1986 who is the second
defendant in the suit by relying upon the registered Will dated 2.9.1985 executed by his
father, first defendant in the suit, would claim that he is entitled to inherit the estate of the
first defendant in the suit. Likewise, the 4th defendant in the suit who is the daughter of the
deceased first defendant has also relied upon a Will said to have been executed by the first
defendant on 24.3.1995 claiming to inherit the estate of the first defendant. Therefore, the
object of referring the matter to the trial Court was to the limited extent of finding about
the genuineness of the Will relied upon by the second defendant dated 2.9.1985 and the Will
relied upon by the 4th defendant dated 24.3.1985. The trial Court has taken the said
application in I.A.No.460 of 1985 in O.S.No.20of 1982 and conducted an enquiry. In the
said enquiry, the 2nd defendant who was the petitioner in C.M.P.No.11380 of 2000 in
A.S.No.768 of 1985 was examined as P.W.1 along with one Marimuthu as P.W.2 being the
attesting witnesses of the Will dated 2.9.1985 executed by the 1 st defendant. The said Will
in I.A. enquiry was marked as Ex.A-1. That apart 11 other documents were filed on behalf
of the 2nd defendant and marked as Exs.A-2 to A-12. Likewise, the plaintiff in the suit was
examined as R.W.1 and the 4 th defendant who has relied upon the Will said to have been
executed by her father dated 24.3.1995 was examined as R.W.4 and the said Will was
marked as Ex.B.4.
62. One Adaikalam and Thiruvengadam who were the attesting witnesses of
Ex.B-4 Will were examined as R.Ws.7 and 8. Apart from those witnesses, four more
witnesses were examined as R.Ws.2 to 5 and documents Exs.B-1 to B-12 were marked.
The trial Court has allowed the parties to file affidavits to substantiate their respective
claims and formulated the following point for determination:
“Whether the Will, Ex.A-1 dated 2.9.1985 produced by the petitioner Ramamurthi
is true and valid and or the Will Ex.B-4 dated 24.3.1995 produced by the
3rd respondent Janaki is true and valid?”
The Will marked as Ex.A-1 dated 2.9.1985 is a registered one and marked through
the second defendant in the suit as P.W.1 in I.A. and one of the attesting witnesses was
examined as P.W.2 to prove the signature of his father in Ex.A-1. The petitioner in I.A.
has filed various letters written by the first defendant marked as Exs.A-4 to A-11. The
Court has also taken into consideration the signature of the first defendant in the suit in a
post card written by him and marked by the other side as Ex.B-12. The plaintiff in the suit
was examined as R.W.1 in the I.A. His case was that the said Will was obtained by undue
influence, duress and coercion. The trial Court has found that after executing the Will
marked as Ex.A-1, the first defendant testator has lived hale and healthy for another 10
years and if really duress and coercion were exercised by the second defendant, he would
have certainly cancelled the same since it is admitted by the other side also that the first
defendant was a strong willed man. The trial Court has taken into consideration the
evidence of P.W.1, attesting witness and has come to the conclusion that the Will Ex.A-1
has been proved in compliance of Section 68 of the Indian Evidence Act coupled with
Section 63(c) of the Indian Succession Act. It is stated by the trial Court that P.W.2 has
clearly given evidence that he has attested Ex.A-1 and he has seen Ramanatha Thevar
signing Ex.A-1 and Ramanatha Thevar had seen the witnesses attesting Ex.A-1. It is also
found that the said P.W.2 was identifying as witness before the Sub-Registrar also. It is also
found that in fact Ramanatha Thevar wanted to settle the issues amicably as per the
evidence of P.Ws.3 to 5 and also based on Exs.B2 and B-3 but the move for compromise has
not come into effect and as admitted by the 4th defendant in the suit who was examined as
R.W.6 Janaki, “the sons of Ramanatha Thevar did not agree for the compromise”.
Therefore the Court has also found that Exs.B-2 and B-3 stated to be agreement and
partition dated 27.5.1993 and 28.5.1993 respectively were never acted upon and such
agreement has never taken place.
 63. The learned trial Judge has also gone into the contents of Ex.A-1 Will and
found that the said Ex.A-1 dated 2.9.1985 Will is genuine, true and valid. On the other
hand, while considering the Will produced by the 4 th defendant dated 24.3.1995, marked as
Ex. B-4, one of the attesting witnesses signed the said Ex.B-4, was examined as R.W.6.
Thiruvenkadam is stated to be the husband of the 4th defendant Janaki who was examined
as R.W.6 and who claimed right under the said Will. The said Will dated 24.3.1995
was said to have been executed by Ramanatha Thevar at Madras. Ex.B-4 also contains a
clause cancelling the Will dated 2.9.1985 marked as Ex.A-1. The trial Court after
considering the evidence, has found that the said Will Ex.B-4 is not true, genuine and
valid. The trial Court has also given reason that admittedly P.W.1 and P.W.6 viz., the
plaintiff and the 4th defendant respectively in the suit have stated that Ramanatha Thevar
was in the habit of writing diary and used to enter all important events in the said diary
and that was marked as Ex.B-5 which according to R.W.6 was left by her father when he
came to see her at Madras along with a bag containing Exs.B5 to B-11. The trial Court
found that while it is the specific case of R.W.6 and R.W.1 that their father Ramanatha
Thevar entered everything in his diary and Ex.B-5 was produced before the Court, the
diary does not contain anything about the execution of Ex.B-4 at all. On the other hand,
the diary contains the minute details as to when Ramanatha Thevar left for Madurai via
Pudukkottai on 19.3.1995 and on 23.5.1995 he returned and he left Madras for home on
8.45 p.m. On the other hand, about the important event of executing Will on 24.3.1995
he has not written anything in the said diary Ex.B-5. That apart, the trial Court also found
that it is the admitted case of R.W.6 that on the Tenth Day ceremony of her father she told
about the Will executed by her father dated 24.3.1995 to all relatives and therefore
everyone was aware of the same since she demanded her share as per the Will. However, it
was thereafter, the second defendant filed the transpose petition in the appeal filed by the
first defendant before this Court in A.S.No.768 of 1985 and to that petition, the plaintiff
in the suit who was the first respondent in the appeal has filed a counter which was
marked as Ex.A-12 and there is nothing about the Will dated 24.3.1995. The trial Court
has also disbelieved the evidence of R.W.7, one of the attesting witnesses and also R.W.8
based on the evidence in cross-examination. In fact, in respect of R.W.8, the trial Court has
come to the conclusion that no evidence is available to show that he was in Madras
on the said date, viz., 24.3.1995. The trial Court, in my considered view, has correctly
come to the conclusion that if really Ramanatha Thevar has executed the Will in favour
of the 4th defendant on 24.3.1995, he would have certainly contacted his advocate at
Madras to see that the appeal filed by him in A.S.No.768 of 1985 is withdrawn. That apart,
the trial Court has found that Ex.B-4 Will is not a registered document and on a
totality of the situation and on assessment of evidence, has come to the conclusion that the
Will produced by the 4th defendant marked as Ex.B-4 dated 24.3.1995 is not true, genuine
and valid.
64. Even though objections are filed by the respondents to the said finding on the basis
that Ex.B-4 Will was proved by the evidence of two attesting witnesses, but to prove
Ex.A-1 Will only one attesting witness was examined as P.W.2, the law in this regard is
well settled. As per Section 63(c) of the Indian Succession Act read with Section 68 of
the Indian Evidence Act, to prove a Will, it is enough to examine at least one of the
attesting witnesses and there is no necessity that both the attesting witnesses should be
examined. That was the decision rendered by the Division Bench of this Court in M.S.P.
Rajesh v. M.S.P. Raja, 1994(1) MLJ 216. Hon’ble Mr.Justice M.Srinivasan (as He then
was) and Hon’ble Mr.Justice Thangamani in the abovesaid judgment, while explaining
the requirement of proving a Will as per the Evidence Act and Succession Act, have held
as follows:
“17. In this connection, it is necessary to refer to Section 63 (c) of the
Succession Act which runs as under:
“The Will shall be attested by two or more witnesses, each of whom has seen the
testator sign or affix his mark to the Will or has seen some other person sign,
the Will in the presence and by the direction of the testator a personal
acknowledgement of his signature or mark, or of the signature of such other
person; and each of the witnesses shall sign the Will in the presence of the
testator, but it shall not be necessary that more than one witness be present at the
same time, and no particular form or attestation shall be necessary.”
Section 68 of the Evidence Act, 1872 provides that if a document is required by
law to be attested it shall not be used as evidence until one of the attesting
witnesses at least has been called for the purpose of proving its execution, if
there be an attesting witness alive, and subject to the process of the Court and
capable of giving evidence. This section lays down the mode of proof of a Will
by calling atleast one witness, but it does not set out or purport to define
what is required to be proved. That however has been laid down in Section
63(c) of the Succession Act. Even if one witness, who is called, is able to
depose to all that is required by Section 63(c) of the Succession Act, for
the valid execution of a Will, that would suffice for Section 68 of the Evidence
Act. Section 68 of the Evidence Act does not in any manner change or alter
the requirements to be proved by Section 63(c) of the Succession Act. A
reading of Section 63(c) of the Succession Act with Section 68 of the
Evidence Act, establishes that a person propounding a Will has to prove that the
Will was duly and validly executed and that should be done by not merely
establishing that the signature on the Will was that of the testator, but also that
the attestations were made in the manner contemplated by Clause (c) of Section
63 of the Succession Act. It is not necessary under Section 68 of the Evidence
Act, to examine both in all the attesting witnesses. There is no dispute that
Advocate Thangamani, the other attestor to Ex.B-16 had died on 16.10.1981.
And in our view the disinterested testimony of D.W.2 Rajaraman amply satisfies
the requirements of law referred to above.”
65. In fact, the Supreme Court has held that when only one person was examined
who himself was the scribe to prove the Will, even though there were three attesting
witnesses, it cannot be stated that the Will is not proved for non-examination of other two
witnesses. That was the decision in Palanivelayutham Pillai v. Ramachandran, 2000 (6)
SCC 151, in the following words:
“9. ... It must, therefore, be held that the disputed Will was attested by three
attesting witnesses out of which one Sankara Narayanan was examined in the
trial Court for proving the said Will. The trial Court as well as the High Court
were justified in taking the view that the Will (Ex. B-487) was duly executed. “
66. In view of the abovesaid facts, the appeals stand allowed with cost to the appellant
in A.S.No.974 of 1986 and the judgment and decree of the trial Court are set aside. As per
the Will dated 02.09.1985 produced by the appellant in A.S.No.974 of 1986, viz.,
R.Ramamoorthi, who was also transposed as appellant in A.S.No.768 of 1985, is entitled
to inherit the estate of the first defendant in the suit.
Appeal allowed.

[2007 (2) TNCJ 682 (Mad)]

MADRAS HIGH COURT
BEFORE:
N. PAUL VASANTHAKUMAR, J.
DINESH KUMAR JHUNJHUNWALA ...Appellant
Versus
THE KARUR VYSYA BANK LTD. ...Respondent
[C.M.A.No. 3006 of 2005, decided on 10 August, 2007]
th

Companies Act, 1956—Sections 41 and 152-A—Depositories Act, 1996—Section

11—Membership—Beneficial owner—Appellant member of company applied for
extracts of register of members—Company refused to give extract of its register of
members to petitioner—Hence company petition—Held, every person holding equity
share capital of company and whose name is entered as beneficial owner in record of
Depository shall be deemed to be member of company—Hence order passed by
Company Law Board directing respondents to furnish the list of members extract of
register of its members excluding list of beneficial owners of shares of Bank is
unsustainable—Order set aside—Appeal allowed.
Section 41(3) clearly states that every person holding equity share capital of a
company and whose name is entered as beneficial owner in the records of the Depository,
shall be deemed to be a member of the concerned company. Thus, every beneficial owner,
whose names are maintained by the depository, shall be deemed to be a member of the
concerned company by virtue of operation of law.
Section 152-A of the Companies Act, 1956, also states that the register and index of
the beneficial owners maintained by a depository under Section 11 of the Depositories Act,
1996, shall be deemed to be an index of members and register and index of debenture
holders, as the case may be, for the purposes of the Companies Act, 1956.
The definition of ‘member’ includes beneficial owner, whose name is entered in the
records of the depository, shall be deemed to be a member of the concerned company with
effect from 20.9.1995. The respondent cannot now contend that the register of members to
be maintained under Section 150 of the Companies Act, 1956, will not cover the beneficial
owner, whose name is entered in the records of the depository. Once the members of the
depository are deemed to be members of the company, register of the company, which is
being maintained as per Sections 151 and 152 of the Companies Act, 1956, must contain the
names of the beneficial owners maintained by the Depository. Section 163 of the Companies
Act, 1956, mandates the company to keep the register and returns for inspection. Hence the
order passed by the Company Law Board directing the respondents to furnish the list of
members extract of register of its members, excluding the list of beneficial owners of the
shares of the bank is unsustainable as the same is contrary to Section 41(3) of the
Company Act, 1956, and also in violation of Section 152-A of the Act.
Hence, it is not open to the respondent Bank now to contend that it will maintain a list
of members, excluding the beneficial owners, whose names are found in the records of the
depository. Therefore, the direction given by the Company Law Board, which is questioned
by the appellant, deserves to be quashed and accordingly the same is set aside.
(Paras 12 to 14 and 16)
Counsel.—Mr. K. Ramasamy, for the appellant; Mr. T.K. Bhaskaran for Mr. Srinath
Sridevan for the respondent.
JUDGMENT
N. PAUL VASANTHAKUMAR, J.—This Civil Miscellaneous Appeal is filed against the
order of the Company Law Board, Southern Region Bench, Chennai, dated 5.5.2005,
insofar as directing the respondent to furnish the extract of its Register of Members,
excluding the list of beneficial owners of shares of the Bank.
2. Notice of motion was ordered in the appeal on 18.10.2005 and after service of
notice, the appeal was listed and on 24.7.2007, by consent of the learned counsel appearing
for the appellant as well as respondent, the appeal was taken up for final disposal.
3. The brief facts necessary for disposal of the appeal are that the respondent/Bank is a
company having its registered central office at Erode Road, Karur. The company is
engaged in banking business. The appellant is a member of the company, holding 100
equity shares. On 18.10.2004 the appellant applied for the extracts of register of members
not earlier than 30.9.2004. On 27.10.2004, the respondent company refused to give the
extracts of its register of members to the petitioner. Hence the company petition
No.13/163(6)SRB/2005 was filed before the Company Law Board, Chennai Bench, with a
prayer to direct the company for an inspection and for issuing of extracts of its register of
members to the petitioner.
4. The said petition was resisted by the respondent Bank by filing a reply contending
that the petitioner had never made request for inspection and he had stated that he will not be
in a position to come for inspection, but still he requires the extracts of its register of
members. The same is contrary to Section 163(2) of Companies Act, 1956, as the persons
claiming right to seek copy of register of members should have inspected the register,
which is a pre-condition for demanding extract of members list. Stating the said defence, the
respondent opposed the company petition and without prejudice to the said contention, the
respondent admitted that on 25.10.2004 it received a fax dated 18.10.2004 from the petitioner
stating that he will not be in a position to come for inspection of register of members and
with a request to provide for an extract of the entire register of members as on 16.10.2004,
for which a reply was already given by the respondent Bank. It is also stated in the reply that
in terms of Section 6(2) of the Depositories Act, 1996, the name of the Depository is entered
in the register of members of the company as registered owners of the demat shares and once
the name of the depositories are entered in the register of members, the said register is
complete in respect of the shares issued by the company, fulfilling the requirements of
Section 150 of the Companies Act, 1956, and the register of beneficial owners is maintained
only by a depository in terms of Section 11 of the Depositories Act and not by the Company
and the Company only receives a status list of the beneficial owners periodically.
 5. The Company Law Board, considering the rival contentions raised, by order dated
24.5.2005, even though held that the right to seek copy of the register of members is
available only to the members, who inspected the register, the prayer of the petitioner
cannot be declined considering his old age. The operative portion of the order reads as
follows:
“......... However, I do not propose to decline the prayer of the petitioner
considering his old age. At the same time, it shall be borne in mind that neither
Section 150 makes any reference to the list of beneficial owners as a part of the
register of members nor Section 163 envisages the right for inspection as well as
copy of the list of beneficial owners. Therefore, in order to meet the ends of
justice, I hereby direct that the petitioner or his authorized representative will
undertake inspection of the register of members of the Bank upon which the Bank
will furnish an extract of its register of members, maintained in accordance with
Section 150 of the Act, at the cost of the petitioner, which shall, however, not
include the list of beneficial owners of shares of the Bank.”
6. The direction given by the Company Law Board, not including the list of
beneficial owners of the shares of the Bank in the membership list, is challenged in this
appeal by raising the following questions of law:
“(1) Whether the register of members under Section 150 of the Companies Act,
1956, includes the beneficial owners of the respondent bank?
(2) Whether the register and index of the beneficial owners maintained under
Section 152-A of the Companies Act, 1956, can be deemed to be an
index of members and register of members within the meaning of Sections
150 and 151 of the Companies Act, 1956 ?
(3) Whether the member includes beneficial owners of the respondent bank
within the meaning of Article 2(vi) of the Articles of Association of the
respondent Bank ?
(4) Whether the register of beneficial owners maintained under Section 11 of
the Depositories Act, 1996, will be deemed to be register of members,
maintained under Section 150 of the Companies Act, 1956 ?”
7. The learned counsel appearing for the appellants contended that Section 41 of the
Companies Act, 1956, defines ‘member’ and Section 41(3) automatically gives membership
right to beneficial owner of share and they form part of members of the company as per
Section 150 of the Companies Act, 1956. The learned counsel also submitted that as per
Section 11 of the Depositories Act, 1996, every depository shall maintain a register and index
of beneficial owners in the manner provided under Sections 150, 151 and 152 of the
Companies Act, 1956, and Section 11 of the Depositories Act, 1996, does not exclude
companies from maintaining the register of members including the beneficial owners. It is
also submitted that if a company’s shares are in demat form, all the shareholders will be
beneficial owners, and the entire depository will be called as registered owners and
therefore the register of member of every company should contain particulars of beneficial
owner and registered owners.
8. The learned counsel appearing for the respondent Bank submitted that Section 150
of the Companies Act, defines register of members and sets out particulars to be contained
therein. Section 152-A provides that register and index of beneficial owners maintained by
the Depository shall be deemed to be index of members for the purpose of the Act and the
beneficial owners cannot be deemed to be members and therefore register of members
contained in Section 150 will only contain particulars other than beneficial owners. The
learned counsel also submitted that Section 163(2) and (3) of the Companies Act, 1956, do
not suggest that register of members would include the list of beneficial owners.
9. I have considered the rival submissions made by the learned counsel appearing for
the appellant as well as learned counsel for the respondent Bank.
10. The point in issue is whether register of members include ‘beneficial owners’ and
whether they are deemed to be members of the concerned Company ?
11. The question of law framed in question No.4 alone is to be answered in this appeal.
For proper appreciation, Sections 150 and 151 is extracted hereunder:
“150. Register of Members.—(1) Every company shall keep in one or more books a
register of its members, and enter therein the following particulars:—
(a) the name and address, and the occupation, if any, of each member;
(b) in the case of a company having a share capital, the shares held by each member
distinguishing each share by its number except where such shares are held with
a depository, and the amount paid or agreed to be considered as paid on those
shares;
(c) the date at which each person was entered in the register as a member; and
(d) the date at which any person ceased to be a member:
Provided that where the company has converted any of its shares into stock and
given notice of the conversion to the Registrar, the register shall show the amount
of stock held by each of the members concerned instead of the shares so converted
which were previously held by him.
(2) If default is made in complying with sub-section (1), the company, and
every officer of the company who is in default, shall be punishable with
fine which may extend to five hundred rupees for every day during which
the default continues.
151. Index of members.—(1) Every Company having more than fifty members
shall, unless the register of members is in such a form as in itself to constitute an
index, keep an index (which may be in the form of a card index) of the names of
the members of the company and shall, within fourteen days after the date on
which any alteration is made in the register of members, make the necessary
alteration in the index.
(2) The index shall, in respect of each member, contain a sufficient indication
to enable the entries relating to that member in the register to be readily
found.
(3) The index shall, at all times, be kept at the same place as the register of
members.
(4) If default is made in complying with sub-section (1), (2) or (3), the
company, and every officer of the company who is in default, shall be
punishable with fine which may extend to five hundred rupees.”
 Section 41 of the Companies Act, 1956, define ‘member of a company’, which reads
as under:
“41.Definition of “member”.—(1) The subscribers of the memorandum of a
company shall be deemed to have agreed to become members of the company, and
on its registration, shall be entered as members in its register of members.
(2) Every other person who agrees in writing to become a member of a
company and whose name is entered in its register of members, shall be a
member of the company.
(3) Every person holding equity share capital of company and whose name is
entered as beneficial owner in the records of the depository shall be
deemed to be a member of the concerned company.”
Section 41(3) was inserted after the enactment of Depositories Act, 1996 (Act 22 of
1996), with effect from 20.9.1995. At this juncture, it is just and proper to verify the
definition of member defined under Section 41, prior to the enactment of Depositories Act,
1996, which reads as follows:
“41.Definition of “member”.—(1) The subscribers of the memorandum of a
company shall be deemed to have agreed to become members of the company, and
on its registration, shall be entered as members in its register of members.
(2) Every other person who agrees in writing to become a member of a
company and whose name is entered in its register of members, shall be a
member of the company.”
From the perusal of the above definition prior to 20.9.1995, it could be seen that the
membership of the company was having a limited meaning and coverage.
12. Section 41(3) clearly states that every person holding equity share capital of a
company and whose name is entered as beneficial owner in the records of the Depository,
shall be deemed to be a member of the concerned company. Thus, every beneficial owner,
whose names are maintained by the depository, shall be deemed to be a member of the
concerned company by virtue of operation of law.
13. Section 152-A of the Companies Act, 1956, also states that the register and index
of the beneficial owners maintained by a depository under Section 11 of the Depositories
Act, 1996, shall be deemed to be an index of members and register and index of debenture
holders, as the case may be, for the purposes of the Companies Act, 1956.
14. The definition of ‘member’ includes beneficial owner, whose name is entered in
the records of the depository, shall be deemed to be a member of the concerned company
with effect from 20.9.1995. The respondent cannot now contend that the register of members
to be maintained under Section 150 of the Companies Act, 1956, will not cover the beneficial
owner, whose name is entered in the records of the depository. Once the members of the
depository are deemed to be members of the company, register of the company, which is
being maintained as per Sections 151 and 152 of the Companies Act, 1956, must contain the
names of the beneficial owners maintained by the Depository. Section 163 of the Companies
Act, 1956, mandates the company to keep the register and returns for inspection. Hence the
order passed by the Company Law Board directing the respondents to furnish the list of
members extract of register of its members, excluding the list of beneficial owners of the
shares of the bank is unsustainable as the same is contrary to Section 41(3) of the
Company Act, 1956, and also in violation of Section 152-A of the Act.
15. If the interpretation given by the Company Law Board is to be accepted, the
insertion of Section 41(3) will be rendered meaningless. Thus, it is clear that after enactment
of the Depository Act, 1996 (Act 22 of 1996), the membership of the Company got widened
and the beneficial owners, whose name are entered in the records of the depository, shall also
be deemed to be the member of the concerned company.
16. The member of the company is defined without any ambiguity in the
Companies Act, 1956 and the intention of the Legislature shall not be given a narrow
interpretation as argued by the learned counsel for the respondent. Hence, it is not open to the
respondent Bank now to contend that it will maintain a list of members, excluding the
beneficial owners, whose names are found in the records of the depository. Therefore, the
direction given by the Company Law Board, which is questioned by the appellant, deserves
to be quashed and accordingly the same is set aside. The respondent is bound to furnish copy
of all members of the company and not in exclusion of the beneficial owners, whose names
are found in the register of depository.
The civil miscellaneous appeal is allowed. No costs.
Appeal allowed.

[2007 (2) TNCJ 689 (Mad)]

MADRAS HIGH COURT
BEFORE:
M. CHOCKALINGAM, J.
V. NATARAJAN AND ANOTHER ...Petitioners
Versus
P. MANI ...Respondent
[C.R.P. (NPD) Nos. 477 of 1993, 3486 of 1995 and 2027 and 2047 of 1998 and C.M.P.No.
10117 of 1998, decided on 8th August, 2007].
(A) Tamil Nadu Buildings (Lease and Rent Control) Act, 1960—Sections 25 and 9
—Eviction—Non-payment of rent and denial of title—Petitioner claiming to have
purchased property from ‘S’—Whereas tenant respondent say property belongs to
Temple and he was paying rent to temple—No jural relationship between petitioner as
landlord and respondent as tenant—Hence Court below rightly dismissed petition.
In the absence of anything to indicate that either they recognized the said
Santhanam as the owner of the property, or there was any jural relationship between the
respondents on the one hand and the said Santhanam on the other, the present petitioners
cannot claim that by way of purchase, they have become the owners of the property, and they
are entitled to recover the rent. In the instant case, there was no jural relationship between
the petitioners as landlords and the respondents as tenants, and the same has not been
proved, as rightly pointed out by the learned counsel for the respondents. In the absence of
the same, this Court is afraid whether it can accept the contention put forth by the learned
senior counsel for the petitioners. Under the circumstances, the revision in CRP No.2027 of
1998 requires an order of dismissal in the hands of this Court. Accordingly, CRP No.2027 of
1998 is dismissed. (Para 10)
 (B) Tamil Nadu Buildings (Lease and Rent Control) Act, 1960—Sections 25 and 9
—Eviction—Denial of title—Civil suit regarding title is pending adjudication—Hence
question of eviction cannot be decided at this stage—Court below rightly dismissed
petition.
It would be quite clear that as far as RCOP No.2032/86 was concerned, the petitioners
as landlords, would claim that the first petitioner is likely to be evicted from the said property
which is the subject matter of RCOP No.2087/89, and therefore, they must be given
possession of this property. But, on the contrary, they have taken a defence as put forth in
the above RCOP No.2087/89. Till the matter in RCOP No.2087/89 where they question the
title of the property, comes to a finality, no question of evicting them would arise. Under the
circumstances, though the first petitioner in RCOP No.2032/86 is running his business in the
other shop on rental basis, and they require the present premises for their own use, so long as
the bona fide is not made out, there is no question of evicting them from the other premises
that would arise. So long as the title to the property in RCOP No.2087/89 is decided, the
same would not arise at all. In such circumstances, the order passed by the appellate
authority in RCA No.310/89 whereby the petition filed by the landlords was dismissed, has
got to be affirmed. Accordingly, it is affirmed. The contention put forth by the tenant has got
to be accepted.
The petitioners in CRP No.3486/95 would claim that they purchased the property
from Santhanam. According to them, Santhanam was the previous owner of the property.
The lower forum has discussed in detail. There are documentary evidence to indicate that the
property was actually dedicated to the temple by way of a kattalai, and out of the income,
Santhanam was performing the kattalai, as trustee. At this juncture, it is to be pointed out
that whether the property belonged to the temple, or it belonged to Santhanam who has sold
the property to the present landlords, could be decided by a Court of civil law in respect of
which, according to the counsel for the temple namely the fifth respondent in RCOP
No.2612/89, a Civil Suit is already pending adjudication. So long as the matter is decided
as to who is the actual owner of the property, by a Court of civil law, the said question cannot
be gone into or decided in the rent control proceedings. That apart, in the instant case, when
sufficient materials are pointed out by the appellate forum in order to indicate that there was a
kattalai, and there was a dedication, and Santhanam was performing the kattalai, it is
doubtful whether Santhanam could have got title to convey the property. But, these revision
petitioners would claim that they have become the owners of the property by way of a sale
deed executed by him in the year 1989. However, this question has got to be decided by the
Court of civil law.
It is true that for a few months from the purchase of the property by the landlords
from Santhanam till July 1989, the rental has been paid, and thereafter, it has not been paid.
But, in the course of the earliest counter, the tenants have questioned the title of the landlords
to the property, which remains to be decided. Under the circumstances, this Court feels that it
is a fit case where there is a bona fide denial of title, which could be decided only by the
Court of civil law. Apart from that, RCOP No.2087/89 is also brought about on the ground
that the petitioners therein are the owners of the property; that the first petitioner is likely
to be evicted from the property, where he is carrying on his business namely the premises
in No.48, Devaraja Mudali Street, and hence, they require an order of eviction. As far as
RCOP No.2032/86 is concerned, the first petitioner in RCOP No.2087/89, who is the
respondent-tenant in that RCOP, is carrying on business, and that RCOP No.2032/86 was
dismissed as above. In such circumstances, no question of imminent threat or the first
petitioner being evicted from the property would arise. Hence, this Court is of the considered
opinion that till the question of bona fide denial of title is decided by a Court of civil law, the
petitioners cannot main a petition for eviction, and it has got to be dismissed which was
accordingly done by the appellate authority.
(Paras 20, 21 and 22)
Counsel.—Mr. A.R..L. Sundaresan, Senior Counsel for Mr. M. Vivekanandan, for the
petitioners in CRP 477/93 and for respondents in CRP 3486/95 and 2047/98; Mr. T.V.
Ramanujam, Senior Counsel for Mr. T.V. Krishnamachari, for the petitioners in CRP
3486/95 and 2027 and 2047/98 and for respondent in CRP 477/93; Mr. P.K.
Sivasubramaniam for R1 Mr. M. Devanand for R2, for the respondents in CRP 2027/98.
JUDGMENT
M. CHOCKALINGAM, J.—This order shall govern the following four revisions namely
CRP Nos.477/93, 3486/95 and 2027 and 2047/98. All these revisions have arisen as follows.
2. The landlords filed RCOP No.2032/86 on the ground of own use and occupation
against the tenant mentioned therein. The said RCOP on enquiry was allowed. The tenant
took it on appeal in RCA No.310/89 before the appellate authority namely the VII Judge,
Court of Small Causes, Madras. On enquiry, the same was allowed. Then, the landlords
have brought forth the revision in CRP No.477/93.
3. RCOP No.2087/89 was filed by the petitioners therein who were the landlords.
They filed the said petition for eviction on the ground of own use and occupation. On
enquiry, the same was allowed. The aggrieved tenants took it on appeal in RCA
No.878/92, and on enquiry, the same was allowed. Then, there arose a revision in CRP
No.3486/95 at the instance of the landlords.
4. RCOP No.2612/89 was filed by the tenant under Section 9(3) of the Act for deposit
of rental. On enquiry, the same was dismissed. Therefrom RCA No.491/93 was made by the
landlords. On dismissal of the same, the landlords have brought forth the revision in CRP
No.2047/98.
5. The last RCOP No.858/90 was filed by the petitioners therein who were the
landlords, for eviction on the grounds of wilful default and denial of title by the tenants two
in number. On enquiry, the same was dismissed. Therefrom, the landlords made RCA
No.541/94. On dismissal of the same, CRP No.2027/98 has been brought forth by the
landlords. Thus, the above four revisions have arisen before this Court.
6. After looking into the materials available, it is seen that the matters are inter-linked,
and the parties in all these proceedings are common. Under the circumstances, the Court
thought it fit to give a common order in all these revisions.
7. As far as CRP No.2027/98 is concerned, RCOP No.858/90 was filed by the
petitioners therein stating that they are the owners of the premises described in the petition
for eviction; that they purchased the property from one Santhanam by way of a sale deed
in the year 1989; that they have become the owners of the property; that the respondents who
are the tenants in respect of the two shops mentioned therein, have been making the payment
of rental to the original owner Santhanam; that they have attorned the tenancy with them, and
thus, they are the tenants under the present landlords who are the petitioners in the RCOP;
that under the circumstances, they are liable to make the payment of rental to them; that on
service of notice, they have also denied the title of the landlords, and hence, they were to be
evicted on the grounds of wilful default and denial of title. The respondents therein resisted
the petition stating that the property belonged to Muthukumarasamy Temple; that the said
Santhanam was never the owner of the property; that there was no privity of contract between
them on the one part and Santhanam on the other; that they have been making the payment of
rental to the owner of the property namely the Temple; that under the circumstances, there
was no jural relationship of landlord-tenant between the parties, and hence, the petition was
to be dismissed. On enquiry, the Rent Controller dismissed the petition. The landlords took it
on appeal referred to above, and it was also dismissed. Under the circumstances, the
landlords have brought forth the said revision before this Court.
8. The learned senior counsel appearing for the revision petitioners in CRP
No.2027/98 would submit that the property originally belonged to one Santhanam; that the
respondents herein were under him as tenants; that they have been making payment of rental;
that the property never belonged to the temple; that the property has been now purchased
by the present petitioners; that now, they became the owners of the property from the time of
sale in the year 1989; that under the circumstances, they are entitled to get the rent as
envisaged under the Act as they are the landlords; that after the issuance of notice, they
brought forth the petition for eviction; that both the forums below have passed an order
dismissing the eviction petition and holding that there was no jural relationship; but, it was
not so; that the property originally belonged to Santhanam which was an admitted fact; that if
to be so, now, the owners are the present petitioners-landlords; that they are entitled to collect
the rent, and hence, it is a fit case where eviction should have been ordered.
9. In answer to the above, it is contended by the learned counsel for the
respondents that in the instant case, there was no jural relationship; that the same was not
established at all, and under the circumstances, both the authorities below were perfectly
correct in dismissing the petition.
10. After careful consideration of the rival submissions made, this Court is of the
considered opinion that the revision in CRP No.2027/98 does not carry any merit whatsoever.
The main contention put forth by the learned senior counsel for the petitioners seeking
eviction on the grounds of wilful default and denial of title, was that they were the owners of
the property which was purchased by them from one Santhanam in the year 1989; that these
respondents were originally tenants under Santhanam; that after the purchase, the petitioners
have become the owners, and thus, they are entitled to collect the rent from them; and that
there was a notice served upon them informing the same and calling upon them to make
payment of rental, but not done so. In the instant case, all the materials available are
thoroughly looked into by the Court. There is not even any iota of evidence to show that they
have ever paid any rental at all to Santhanam previously or attorned the present
petitioners as landlords in respect of the property. But, on the contrary, there was
evidence to show that in respect of the shops two in number, occupied by the respondents,
who are also two in number, they have been making payment of rental to the temple, and it
was brought forth by sufficient evidence. In the absence of anything to indicate that either
they recognized the said Santhanam as the owner of the property, or there was any jural
relationship between the respondents on the one hand and the said Santhanam on the other,
the present petitioners cannot claim that by way of purchase, they have become the owners of
the property, and they are entitled to recover the rent. In the instant case, there was no jural
relationship between the petitioners as landlords and the respondents as tenants, and the same
has not been proved, as rightly pointed out by the learned counsel for the respondents. In the
absence of the same, this Court is afraid whether it can accept the contention put forth by the
learned senior counsel for the petitioners. Under the circumstances, the revision in CRP
No.2027 of 1998 requires an order of dismissal in the hands of this Court. Accordingly, CRP
No.2027 of 1998 is dismissed. No costs.
 11. Insofar as the other three revisions are concerned, they are actually inter-linked to
each other. The petitioners in RCOP No.2032/86, who are the landlords, filed the petition on
the ground of own use and occupation alleging that the respondent therein is actually a
tenant under them; that the property is situated in No.48, Devaraja Mudali Street; that the
respondent is carrying on a bunk there on payment of rental; that he has been making so in
the past to the petitioners recognizing them as owners and landlords also; that the first
petitioner is carrying on his coffee business in No.219, Mint Street; that it is a rented
premises; that the owner of that premises is requiring more than Rs.500/- as rent; that under
the circumstances, the premises in question is required for carrying on his own business; that
that the landlords are not owning any other property where they could carry on the business,
and under the circumstances, the eviction was to be ordered. The said petition was resisted
by the tenant stating that the petition lacked thoroughly bona fide; that apart from that, the
first petitioner is not carrying on his coffee business; that the measurement of the property
which is under the occupation of the tenant, is only 36 sq. ft.; that what is required for
carrying on the coffee stall is 10" x 10"; but, the said space was insufficient to carry on the
business; that it is true that they are not having any other property of their own; that as far as
the other property where the tenant is carrying on his business is concerned, he has
purchased the property; that when he purchased the property, he filed a RCOP for
eviction of the present landlords, where they would state that the property did not belong to
the respondent, but belonged to the Temple, and under the circumstances, they should not be
evicted; that the allegation that there was an attempt by the landlords to evict them and also
they are asking for more than Rs.500/- as rent was nothing but a falsity; that under the
circumstances, it lacked thoroughly bona fide; that there was no need or requirement as put
forth by the landlords, and hence, the petition was to be dismissed.
12. The respondent in RCOP No.2032/86 along with others filed the other petition in
RCOP No.2087/89 for eviction on the same ground of own use and occupation. The
landlords therein have brought forth that petition stating that the property originally belonged
to one Santhanam; that they have purchased the property in the year 1989, and thus, they
have become the owners of the property; that the respondents therein attorned the tenancy;
that they have been making payment of rental from the time of the purchase till July 1989;
that under the circumstances, they are the landlords in respect of the property; that the
respondents therein are the tenants; that the property in 219, Mint Street, is having an
extent of 40 sq. ft.; that the respondents therein are occupying that property for their own use
and occupation; that they are carrying on the business in 48, Devaraja Mudali Street, which
belonged to the landlords; that they have filed RCOP No.2032/86; that under the
circumstances, the landlords required the premises for their own use and occupation, and
hence, the tenants have got to be evicted. The petition was resisted by the tenants stating that
the property did not belong to the landlords; that originally, it belonged to the Temple; that
actually, there was a kattalai, pursuant to which all the income therefrom were used only for
the purpose of performing the kattalai for which Santhanam was also using the same as
trustee; that he had no iota of right over the property; that he could not convey the property;
that however, he sold the property in favour of the present petitioners; that they could not
make any claim over the property; that under the circumstances, the temple is the owner of
the property; that there is actually a dispute questioning the title of the property; that it
has got to be decided by a Court of civil law; that till the time, there is no question of
payment of rental to the petitioners that would arise; that there was no jural relationship of
landlord and tenant, and hence, the petition was to be dismissed.
13. Both the petitions in RCOP Nos.2032/86 and 2087/89 were taken up for enquiry
along with the third petition in RCOP No.2612/89. That petition was filed by the first
respondent in RCOP No.2087/89 wherein he wanted to make deposit of the rental under
Section 9(3) of the Act alleging that he is a tenant in respect of the premises in No.219, Mint
Street and making the payment of rental; that for sometime, Santhanam was collecting the
rental; that Santhanam was actually a trustee of the temple; that he was getting the money for
doing certain performance of the kattalai; that it was not his property; that there was a
notice served upon him by the respondents-landlords alleging that they purchased the
property; but, he was making payment of rental for a few months; that thereafter, there was a
notice that emanated from the temple; that the temple claimed that the property belonged to
the temple, and thus, the rent should be paid only to the temple; that under the circumstances,
there arose a necessity for filing a petition to deposit the same before the Court under Section
9(3) of the Act since it is not known to whom the rent has got to be paid; that he should not
be mulcted with any liability of payment of rental; that however, it is made to a wrong
person, and under the circumstances, the petition is filed. The petition was resisted by the
landlords stating that they have purchased the property from Santhanam in 1989; that
Santhanam was the owner of the property before purchase; that till July 1989, the payments
have been made only to the present landlords; that there was an attornment; that apart from
that, there was recognition of the landlord-tenant relationship; that under the circumstances,
the tenant namely the petitioner herein, was estopped from questioning the same; that he
has made the payment only to the landlords, and hence, the petition was to be dismissed.
14. On enquiry, the learned Rent Controller allowed RCOP No.2032/86. The tenant
took it on appeal in RCA No.310/89, and the same was also allowed. Then, the landlords
have brought forth CRP No.477/93. Equally, RCOP No.2087/89 was allowed. The
aggrieved tenants took it on appeal in RCA No.878/92, and the appeal was allowed.
Therefrom, the landlords have brought forth CRP No.3486 of 1995. As far as RCOP
No.2612/89 filed under Section 9(3) of the Act for depositing the rental was concerned, the
Rent Controller dismissed the petition. The landlords took it on appeal in RCA No.491/93,
and the same was also dismissed. Thus, CRP No.2047/98 has arisen at the instance of the
landlords. Originally, there was a direction given to the tenants to make payment of rental
directly to the fifth respondent therein namely the temple. Thus, all these three revisions
have arisen.
15. Advancing his arguments on behalf of the revision petitioners in CRP No.477/93,
the learned senior counsel would submit that in the instant case, it is an admitted fact that the
petitioners in the original RCOP are the landlords of the property; that the ownership of the
landlords is never disputed by the tenant; that the tenant has been making payment of rental;
that it is also an admitted position that the first petitioner is carrying on his business in a shop
on rental basis; that under the circumstances, the present premises is required for carrying on
his own business; that there cannot be any impediment at all; that the contentions
levelled against the landlords that the petition lacked bona fide, and there was no need
at all are all simply imaginary; that the requirement has also been proved, and under the
circumstances, eviction order has got to be passed.
16. The learned senior counsel appearing for the respondent in CRP No.477/93 would
submit that the shop is only measuring 36 sq. ft.; that it is true that the tenant is actually
occupying the same for carrying on his petty shop, where a tea stall cannot be conducted by
the petitioners; that the first petitioner is actually carrying on his business in the other
premises which is also subject matter in the other revision in CRP No.3486/95; that in the
petition filed in RCOP No.2087/89, the respondents therein, who are the petitioners in RCOP
No.2032/86, raised a contention that an order of eviction could not be passed since the
petitioners in RCOP No.2087/89 were not the owners of the property which belonged to
the temple; but, they have raised such a contention; that there was lack of bona fide; that if
RCOP No.2032/86 is allowed granting an order of eviction, where they thoroughly lacked
bona fide, they will have both the properties continued to be in their possession, which
cannot be permitted; that in this case, one is the landlord, and the other is the tenant denying
the title of the landlord, and under the circumstances, it must be dismissed.
17. As far as CRP No.3486/95 is concerned, the learned senior counsel for the
petitioners would submit that in the instant case, the RCOP was filed on the ground of
personal use and occupation; that it is also an admitted position that the first petitioner is
actually carrying on his business in a shop which belonged to the petitioners in RCOP
No.2032/86; that under the circumstances, they have also filed a petition for eviction; that in
the case on hand, so long as the petitioners are able to show that the first petitioner is carrying
on his business in some other rented premises, there cannot be any impediment for granting
the relief; that apart from that, the contention raised by the respondents that the property
belonged to the temple, and Santhanam, who sold the property, had no iota of right in the
property, is nothing but imaginary; that there were civil proceedings between the parties
where the property has been found to be one belonging to the ancestors of the said
Santhanam, and thus, he was competent to execute the sale deed which conveyed the title to
the property. Added further the learned senior counsel that the present tenants who have
challenged the order of eviction on that ground, have made the payment of rental till July
1989, and thus, not only they have attorned the tenancy, but also they are estopped from
questioning the ownership of the petitioners herein or their status as landlords, and hence,
eviction has got to be ordered.
18. In reply to the above contentions, the learned senior counsel for the
respondents in CRP No.3486/95 would submit that it is true that the property was purchased
by the landlords from Santhanam; but, Santhanam is not actually the owner of the
property; but, he was recovering the rental only on behalf of the temple; that even it is an
admitted position that the kattalai is being performed from and out of the rental income; that
now Santhanam had no right to sell the property dedicated for a kattalai; that under the
circumstances, even the sale deed would not convey any title; that now, the temple has also
issued a notice that the temple is the owner of the property, and hence, the rent must be paid
to the temple; that there is also an order of the Rent Controller that the rental amounts have
got to be paid only to the temple; that in this case, there is no question of jural relationship
between the parties; that it is true that for a few months from the time of the purchase, the
amounts were paid to the present landlords; that it was only a sheer mistake; that merely
because of the payment for a few months, it cannot be now stated that they have recognized
the ownership; that immediately after the notice was served upon them, it came to the
knowledge of the tenants that the present petitioners were not the landlords; that the property
originally belonged to the temple of which Santhanam was acting as trustee; that he was
collecting rental payment on behalf of the temple; that the same is being used for the
kattalai performance, and under the circumstances, the appellate authority was perfectly
correct in dismissing the RCOP, and therefore, that order has got to be affirmed.
19. The Court paid its anxious consideration on the rival submissions made.
 20. The petitioners in RCOP No.2032/86 have come forward with a petition under
Section 10(3)(a)(iii) of the Act alleging that they are the owners of the property measuring 36
sq. ft. situated in No.48, Devaraja Mudali Street. The ownership of the property is not
questioned by the opposite party, who is the first petitioner in RCOP No.2087/89, and he has
also recognized them as landlords, and he has been making payment of rental. These are all
admitted facts. Now, the petitioners in RCOP No.2032/86 seeks an order of eviction on the
grounds that the first petitioner is carrying on his coffee business in the premises situated in
No.219, Mint Street, on a rental basis; that there was a petition filed for eviction; that apart
from that, the owner of that rented property was asking more than Rs.500/- per month as rent;
that there was all likelihood of the first petitioner being evicted, and under the
circumstances, in order to carry on his own business, the present property is required. After
looking into the materials available, this Court is of the considered opinion that the
petitioners in RCOP No.2032/86 have not proved the bona fide, the basic requirement for a
petition for eviction under Section 10(3)(a)(iii) of the Act. Admittedly, the first petitioner in
RCOP No.2032/86 is carrying on his business in No.219, Mint Street, which is having an
extent of 40 sq.ft., wherein he is running the coffee business. Now, the reason adduced
by them for getting an order of eviction is that the first petitioner wants to take his business to
the other property which is situated in No.48, Devaraja Mudali Street, which belonged to
them originally. There cannot be any impediment for a person to carry on his business in his
own property and that too, in a case where he is carrying on his business in a rented premises.
Now, at this juncture, the bona fide of the petitioners will have the main role to play. In the
instant case, if the bona fide of the petitioners is looked into, it would indicate that so long as
the first petitioner continues to be tenant in No.219, Mint Street, to carry on his coffee
business, the present property would not be required. As far as RCOP No.2087/89 was
concerned, the respondents therein resisted that petition for eviction filed by the landlords, of
whom one Mani is the respondent-tenant in RCOP No.2032/86, stating that the property did
not belong to the landlords; that it belonged to the temple; that there was no necessity at all;
that all these contentions are not at all maintainable; and that they need not make payment of
rental to the petitioners therein. Thus, it would be quite clear that as far as RCOP
No.2032/86 was concerned, the petitioners as landlords, would claim that the first petitioner
is likely to be evicted from the said property which is the subject matter of RCOP
No.2087/89, and therefore, they must be given possession of this property. But, on the
contrary, they have taken a defence as put forth in the above RCOP No.2087/89. Till the
matter in RCOP No.2087/89 where they question the title of the property, comes to a finality,
no question of evicting them would arise. Under the circumstances, though the first
petitioner in RCOP No.2032/86 is running his business in the other shop on rental basis, and
they require the present premises for their own use, so long as the bona fide is not made out,
there is no question of evicting them from the other premises that would arise. So long as the
title to the property in RCOP No.2087/89 is decided, the same would not arise at all. In such
circumstances, the order passed by the appellate authority in RCA No.310/89 whereby the
petition filed by the landlords was dismissed, has got to be affirmed. Accordingly, it is
affirmed. The contention put forth by the tenant has got to be accepted.
21. As regards RCOP No.2087/89, in the instant case, the landlords wanted the
property for their own use and occupation alleging that they have purchased the property
situated in No.219, Mint Street, from one Santhanam. They would further add that the
tenants have made payments recognizing them as landlords and attorned tenancy; that they
have made the payment of rental till July 1989, and thus, they require the premises for their
own use and occupation at present, since there is a threat of eviction from the landlord in
respect of the premises in No.48, Devaraja Mudali Street, where the first petitioner is running
his business. That petition was resisted by the opposite party stating that the property
belonged to the temple; that it never belonged to Santhanam or to the present landlords.
Under the circumstances, there is a bona fide denial of title, and so long as the title is
decided, they could not make the payment of rental. Added circumstance is that the first
respondent in RCOP No.2087/89, namely the tenant, filed a petition under Section 9(3) of
the Act in RCOP No.2612/89, and it is also by way of revision in CRP No.2047/98 at the
instance of the landlords, now pending in the hands of this Court referred to above. After
going through the materials available, this Court is of the considered opinion that an order
of eviction as required by the petitioners in RCOP No.2087/89, cannot be passed for the
following reasons.
22. In the instant case, the property is situated in No.219, Mint Street, having a
measurement of 40 sq. ft. The property originally consists of three shops of which one of the
shops is being occupied by the respondents in RCOP No.2087/89. The petitioners therein
claimed that they purchased the property from Santhanam, and thus, they filed two petitions
one in RCOP No.2087/89 against the present respondents and the other in RCOP
No.858/90 against two other tenants who were occupying the other two shops. As far as the
other two shops were concerned in that RCOP, those tenants took the plea that the property
belonged to the temple; that they have been paying rent to the temple from the
commencement; that they have never paid any rental to Santhanam; that Santhanam was
never the owner of the property; and that there was no jural relationship between the parties.
This contention has been upheld by this Court in CRP No.2027/98 referred to above. Now,
the shop premises covered under RCOP No.2087/89 is also a part and parcel of the very same
property. The petitioners in CRP No.3486/95 would claim that they purchased the property
from Santhanam. According to them, Santhanam was the previous owner of the property.
The lower forum has discussed in detail. There are documentary evidence to indicate that the
property was actually dedicated to the temple by way of a kattalai, and out of the income,
Santhanam was performing the kattalai, as trustee. At this juncture, it is to be pointed out
that whether the property belonged to the temple, or it belonged to Santhanam who has sold
the property to the present landlords, could be decided by a Court of civil law in respect of
which, according to the counsel for the temple namely the fifth respondent in RCOP
No.2612/89, a Civil Suit is already pending adjudication. So long as the matter is decided as
to who is the actual owner of the property, by a Court of civil law, the said question cannot
be gone into or decided in the rent control proceedings. That apart, in the instant case,
when sufficient materials are pointed out by the appellate forum in order to indicate that
there was a kattalai, and there was a dedication, and Santhanam was performing the kattalai,
it is doubtful whether Santhanam could have got title to convey the property. But, these
revision petitioners would claim that they have become the owners of the property by way of
a sale deed executed by him in the year 1989. However, this question has got to be decided
by the Court of civil law.
23. It is true that for a few months from the purchase of the property by the landlords
from Santhanam till July 1989, the rental has been paid, and thereafter, it has not been paid.
But, in the course of the earliest counter, the tenants have questioned the title of the landlords
to the property, which remains to be decided. Under the circumstances, this Court feels that it
is a fit case where there is a bona fide denial of title, which could be decided only by the
Court of civil law. Apart from that, RCOP No.2087/89 is also brought about on the ground
that the petitioners therein are the owners of the property; that the first petitioner is likely
to be evicted from the property, where he is carrying on his business namely the
premises in No.48, Devaraja Mudali Street, and hence, they require an order of eviction. As
far as RCOP No.2032/86 is concerned, the first petitioner in RCOP No.2087/89, who is
the respondent-tenant in that RCOP, is carrying on business, and that RCOP No.2032/86 was
dismissed as above. In such circumstances, no question of imminent threat or the first
petitioner being evicted from the property would arise. Hence, this Court is of the considered
opinion that till the question of bona fide denial of title is decided by a Court of civil law, the
petitioners cannot main a petition for eviction, and it has got to be dismissed which was
accordingly done by the appellate authority. Hence, the order of the appellate authority is
affirmed, and CRP No.3486/95 fails.
24. As regards RCOP No.2612/89, it was at the instance of the tenant who is the first
respondent in RCOP No.2087/89. According to him, it is doubtful to whom the rent has got
to be paid, and on the one side, the petitioners in RCOP No.2087/89 claimed that they are the
owners of the property, and rent has to be paid to them, and on the other side, the temple is
also claiming ownership to the property, and under the circumstances, the said petition was
filed. In CRP No.3486/95, it has been held that the question as to the bona fide denial of title
has got to be decided, and till the time, the RCOP could not be maintained, and in view of the
same, that petition has been dismissed as above.
25. Apart from the above, at present, the rent is being paid by the tenants namely the
respondents in RCOP No.2087/89, to the fifth respondent-temple, which has been made as a
party in the original RCOP between the parties. Now, from the submissions made, it could
be seen that the kattalai is being performed in the temple out of the income from the
property. Those proceedings are pending before the Court of civil law and also before the
Hindu Religious and Charitable Endowment. Till the decision is arrived at, there cannot be
any impediment for the fifth respondent-temple in receiving the rental from the respondents
in RCOP No.2087/89 and the petitioner in RCOP No.2612/89. Therefore, as an interim
measure, it has got to be continued till the decision is taken by the Court of civil law as to
the ownership of the property. Further, the parties are actually bound by the decision to be
taken by the Court of civil law as to the ownership of the property and recovery of rental
in respect of the premises, which is covered in RCOP No.2087/89. At this juncture, it is
brought to the notice of the Court that the suit pending in the Court of Civil law was
dismissed for default, and the application for restoration is pending. Till the said question is
decided, as it is done today, the temple is permitted to receive and the tenants are also
directed to make the payment of rental to the fifth respondent which is a temple, and it will
be without prejudice and subject to the result of the proceedings pending in the Court of civil
law. In view of the above reasons, as far as CRP No.2047/98 at the instance of the
landlords in RCOP No.2612/89 is concerned, it has got to be, accordingly, disposed of.
26. In the result, CRP Nos.477/93, 3486/95 and 2027/98 are dismissed. No costs.
27. In the result, CRP No.2047/98 is, accordingly, disposed of. No costs.
Consequently, connected CMP is closed.
Ordered accordingly.

[2007 (2) TNCJ 704 (Mad) (MB)]

MADRAS HIGH COURT
(MADURAI-BENCH)
BEFORE:
S. NAGAMUTHU, J.
P. RAJENDRAN ...Appellant/5th Defendant
Versus
MUTHUSAMY MOOPANAR AND OTHERS ...Respondents/ Plaintiff
and Defendants 1 to 4
[C.M.A. (MD) No. 507 of 2007 and C.M.P. No. 1 of 2007, decided on 11 th June, 2007]
Civil Procedure Code, 1908—Order XXXIX, Rule 1 and Order VII, Rule 3—
Temporary injunction—Description of property— Property as described in plaint
map is different from report of Commissioner—Hence in the circumstances
temporary injunction cannot be granted—Order granting injunction set aside—
Remanded for fresh disposal.
The rough sketch prepared by the Commissioner marked as Ex.P-2, does not help the
Court to identify the property because it does not contain the four boundaries of the property.
But the rough sketch would show that the property mentioned in R.S.No.1740/30 and which
has been subsequently sub-divided as 1740/30A and 30-B, is situated far away from the
property comprised in R.S. No.1740/28 which has been now sub-divided as 1740/28-A and
28-B. In between these two properties, another property is lying, which is comprised in
R.S.No.1740/29. Thus, the rough sketch would clearly show that these two properties
comprised in R.S.No.1740/30 and 1740/28-B are totally different properties situated at a
considerable distance in between.
A comparison of these four boundaries mentioned in the report would clearly show
that the four boundaries are not identical with that of the four boundaries mentioned in the
plaint.
Relying on the mention made about the suit property in the document, the learned
counsel for the first respondent would submit that since the ownership of the property of the
first respondent has been mentioned in all the documents, the question of identifying the
property is not important and therefore, the order of the lower Court should not be disturbed.
I am not able to agree with the said argument of the learned counsel for the first
respondent for the simple reason, in that case that there was a Commissioner’s report filed
which was in favour of the petitioner therein and there was no objection filed to that
and thus, the identity of the property in the reported case came to be an admitted fact,
whereas in the case on hand, objection has been filed against the Commissioner’s report and
the identity of the property has become the question of fact, which requires to be proved by
means of evidence at a later stage of the trial of the suit. Therefore, this argument of the
learned counsel for the first respondent is also rejected.
He has fi1ed I.A No.99 of 2007 seeking to amend not only the survey number but
also the four boundaries of the property, which would show that the property has not been
described properly as required under Order VII, Rule 3, either by means of correct survey
number or by means of four boundaries. It may be true that the extent is one and the same.
But under Order VII, Rule 3, it is not the extent which is material to identify the property but
it is either the survey number or the four boundaries or both, which is material to identify the
suit property. Therefore, I have no difficulty in holding that the suit property has not been
described properly. When that be so, in my opinion, the lower Court was not correct in
granting order of temporary injunction with reference to Survey No. 1740/28B which
according to the learned counsel for the appellant and also according to the rough sketch filed
by the Commissioner is totally a different property from that of’R.S.No.1740/30. For these
reason, I have to necessarily set aside the order of the lower Court and to allow the appeal as
prayed for. (Paras 14 to 16)
Case law.—(2006) MLJ 68—referred.
Counsel.—Ms. Lakshmi Gopinathan, for the appellant; Mr. M. Thirunavukkarasu, for
the respondents.
JUDGMENT
S. NAGAMUTHU, J.—This civil miscellaneous appeal has been filed challenging the
order passed by the learned Principal District Judge, Srivilliputhur made in I.A.No.34/2007 in
O.S.No.5/2007, dated 26.03.2007.
2. The facts of the case are as follows:—
The appellant is the fifth defendant and the respondents 2 to 5 are the other defendants
in the above suit. The first respondent is the plaintiff in the suit. The first respondent has filed
the above suit praying for decree and judgment in his favour;
(a) To demarcate the boundary line of plaint schedule property by metes and
bounds;
(b) To grant permanent injunction restraining the defendants, their men and agents
not to interfere with plaintiff’s peaceful possession and enjoyment of the suit
property either by dispossessing the plaintiff or by otherwise and for other
reliefs;
While filing the said suit, the first respondent, has also filed I.A.No. 34 of 2007,
praying for an order of temporary injunction to restrain the defendants therein from
interfering with his peaceful possession and enjoyment of the suit scheduled property either
by dispossessing or otherwise by the defendants.
3. Before the trial Court, the respondents 2 and 3 have not filed counter in I. A.No. 34
of 2007. The appellant who is the fifth respondent in I. A. No. 34 of 2007 and the fifth
defendant in O.S. No. 5 of 2007, has filed a detailed counter. The fourth respondent herein
who is the third respondent in I.A.No. 34 of 2007 and the third defendant in the suit has also
filed counter.
4. In the counters, though several contentions have been raised, there is a specific plea
taken was that the suit property has not been described properly.
5. A Commissioner had been appointed to note down the physical features and to
submit his report. Accordingly, the Commissioner has also filed a report dated 14.02.2007
along with a rough sketch and a survey sketch.
6. Before the lower Court, on the side ofthe first respondent herein, eight documents
were marked as Exs.P1 to P.8 and on side of appellant/fifth defendant herein, two documents
were marked as Exs.Rl and R2. Besides three Court documents were marked as Exs. C-l to
C-3 which are the Commissioner’s report, Commissioner’s rough sketch and the Surveyor
sketch.
7. Having considered the documents and also the rival contentions made by the
learned counsel for both parties, the learned Principal District Judge by order dated
26.3.2007, has granted an order of interim injunction in favour of the first respondent herein
as prayed for. Challenging the same, the appellant/fifth defendant before the lower Court
has come forwarded with this civil miscellaneous appeal.
 8. Heard the learned counsel for the appellant and the learned counsel for the first
respondent. Though notice has not been served on the respondents 2 to 5 herein in view of
the order which is proposed to be passed in this C.M.A., which would not cause any
prejudice to them, this Court proposes to pass final order in this C.M.A., even without
hearing the respondents 2 to 5 herein.
9. Though several contentions have been raised by the contesting parties, the
important point which has been raised is the question of identity of the suit property. Learned
counsel for the appellant would confine her argument only with reference to the
description of the property which has to be answered by the learned counsel for the first
respondent.
10. The contention of the learned counsel for the appellant is that, the suit property
described in the plaint is comprised R.S.No. 1740/30. The four boundaries are one
Gurusamy’s land on the south, one Karrupusamy’s land on the west, one Vinayagamoorthy’s
land on the north, and one Gnaniyar’s land on the east. The total extent of the property is
1.25 cents.
11. Learned counsel for the appellant would refer to paragraph No.10 of the order of
the lower Court wherein the lower Court has given a clean finding that the survey number of
the suit property has been wrongly mentioned in the plaint. According to the lower Court, the
actual survey number of the suit property must be R.S.No.1740/28B instead the same has
been mentioned as 1740/30. Learned counsel for the first respondent would also fairly
concede that such a mistake has occurred, in the plaint while describing the property. He
would try to explain the same by referring to an amendment petition filed by the first
respondent herein in I.A.No.99 of 2007, wherein he has requested the Court to permit him to
amend the survey number of the suit property as 1740/28B instead of 1740/30. Thus, there is
now no controversy that the description of the survey number, as made in the plaint and in
I.A. for injunction is not correct.
12. Learned counsel for the appellant would also rely on Ex. P.8, which is the Patta
Transfer Order issued by the Tahsildar, Rajapalayam wherein the first respondent herein is
stated to have 2 pieces of lands, one comprised in R.S.No.1740/28B, the other
comprised in R.S.No. 1740/30.
13. Learned counsel for the appellant would say that the first respondent has filed the
suit only with reference to his land comprised in R.S.No.1740/30 and therefore, he
cannot have any order of temporary injunction in his favour with reference to the other
property comprised in R.S.No.1740/28. Learned counsel for the appellant would submit
that these two properties are totally different and therefore, having prayed for temporary
injunction with reference to one property, the first respondent is not entitled to have such an
order of injunction in respect of the other, which is totally a different property.
14. Learned counsel for the first respondent would strenuously argue that the
contention of the learned counsel for the appellant is not correct. He would state that the
survey number has been mistakenly mentioned as R.S.No.1740/30 instead of 1740/28B.
However, according to the learned counsel for the first respondent, the property is one and
the same and the same has been described by means of correct four boundaries. Learned
counsel would submit that as required under Order VII, Rule 3, C.P.C., though the property
has been mistakenly described by means of the survey number, the same has been described
by means of four boundaries correctly and therefore, there was nothing wrong on the part
of the lower Court in granting the prayer as made. He would also further state that there is no
change in the extent of the property. To substantiate the said argument, the learned counsel
for the first respondent would rely on Paragraph No.15 of the Commissioner’s Report,
wherein the property has been described. To appreciate the said argument of the learned
counsel for the first respondent, I have gone through Paragraph No.15 of the
Commissioner’s report and also the rough sketch submitted by the Commissioner. The rough
sketch prepared by the Commissioner marked as Ex.P-2, does not help the Court to identify
the property because it does not contain the four boundaries of the property. But the rough
sketch would show that the property mentioned in R.S.No.1740/30 and which has been
subsequently sub-divided as 1740/30A and 30-B, is situated far away from the
property comprised in R.S. No.1740/28 which has been now sub- divided as 1740/28-A and
28-B. In between these two properties, another property is lying, which is comprised in R. S.
No.1740/29. Thus, the rough sketch would clearly show that these two properties comprised
in R.S.No.1740/30 and 1740/28-B are totally different properties situated at a considerable
distance in between. Since the Commissioner’s rough sketch does not help the Court to
identify whether the four boundaries as given in the plaint refer to the property comprised
in R.S.No.1740/28-B, this Court has to refer to Paragraph No.15 of his report wherein he has
stated that the suit property has been identified by the fifth respondent herein during his visit.
The four boundaries are on the north, the land of one Muthusamy, on the east, the land of one
Arumuga Moopanar now that of one Kumaraguru, on the south, the land of one Muthusamy
Moopanar now that of one Vinayagamoorthy and on the west, the land of one Armuga
Perumal now that of Gnaniyar. A comparison of these four boundaries mentioned in the
report would clearly show that the four boundaries are not identical with that of the four
boundaries mentioned in the plaint.
15. Learned counsel for the first respondent relied on the judgment of this Court
reported in (2006) M.L.J 68, Kandasamy v. Kolandasamy, wherein this Court has rejected the
plea of the respondent therein that the suit property was not described properly.
Relying on the mention made about the suit property in the document, the learned counsel for
the first respondent would submit that since the ownership of the property of the first
respondent has been mentioned in all the documents, the question of identifying the property
is not important and therefore, the order of the lower Court should not be disturbed. I am not
able to agree with the said argument of the learned counsel for the first respondent for
the simple reason, in that case that there was a Commissioner’s report filed which was in
favour of the petitioner therein and there was no objection filed to that and thus, the
identity of the property in the reported case came to be an admitted fact, whereas in the case
on hand, objection has been filed against the Commissioner’s report and the identity of the
property has become the question of fact, which requires to be proved by means of evidence
at a later stage of the trial of the suit. Therefore, this argument of the learned counsel for the
first respondent is also rejected.
16. Learned counsel for the appellant would at this juncture refer to the affidavit filed
in support of I.A.No.99 of 2007, seeking for amendment. In the said affidavit in I. A.No. 99
of 2007, the respondent has admitted that not only the survey number but also the four
boundaries have been incorrectly mentioned in the petition. He has fi1ed I.A. No.99 of
2007 seeking to amend not only the survey number but also the four boundaries of the
property, which would show that the property has not been described properly as required
under Order VII, Rule 3, either by means of correct survey number or by means of four
boundaries. It may be true that the extent is one and the same. But under Order VII, Rule 3, it
is not the extent which is material to identify the property but it is either the survey number or
the four boundaries or both, which is material to identify the suit property. Therefore, I have
no difficulty in holding that the suit property has not been described properly. When that
be so, in my opinion, the lower Court was not correct in granting order of temporary
injunction with reference to Survey No. 1740/28B which according to the learned counsel for
the appellant and also according to the rough sketch filed by the Commissioner is totally a
different property from that of’R.S.No.1740/30. For these reason, I have to necessarily set
aside the order of the lower Court and to allow the appeal as prayed for.
17. It is the admitted case that I.A.No.99 of 2007 is still pending on the file of
the lower Court. While setting aside the order of the lower Court, I deem it proper to remand
back I.A.No.34 of 2007 to the file of the lower Court with a direction to dispose of I.A.No.99
of 2007 first and then to proceed either with the I.A.No.34 of 2007 or with the suit.
18. At this juncture, the learned counsel for the first respondent would submit
that there may be an order directing the appellant to maintain the status quo. For this request
made, the learned counsel for the appellant would submit that already a construction on
the property which according to her is not the suit property, is under progress and the
appellant would continue to construct the same. However, the learned counsel for the
appellant has made an undertaking before this Court in writing that such construction would
be subject to the result of the suit in O.S.No.5 of 2007.
19. In view of the said undertaking, C.M.A.No.507 of 2007 is allowed and the order in
I.A.No. 34 of 2007, dated 26.03.2007 is set aside. I.A.No 34 of 2007 remanded back to the
file of the 1earned Principal District Judge, Srivilliputhur, with a direction to the learned
Principal District Judge that he shall dispose of I.A.No.99 of 2007 first and then to proceed
either with I.A.No.34 of 2007 or with the suit, as the case may be as expeditiously as
possible. The undertaking of the learned counsel for the appellant is recorded. Considering
the nature of the dispute involved, there shall be no order as to costs.
Appeal allowed.

[2007 (2) TNCJ 711 (Mad) (MB)]

MADRAS HIGH COURT
(MADURAI-BENCH)
BEFORE:
M. JAICHANDREN, J.
MERCY DHARAMARAJ AND OTHERS ...Appellants
Versus
M. GOMATHY AND OTHERS ...Respondents
[S.A.(MD) Nos. 286 of 2005 and 1145 of 2006, C.M.P.No. 2473 of 2005, M.P.Nos. 3 and 4
of 2006, decided on 26th April, 2007]
(A) Evidence Act, 1872—Section 3—Single sentence of evidence—
Appreciation of—Entire evidence has to be read as a whole—Single sentence cannot be
taken in isolation to draw any valid inference.
In the evidence let in on behalf of the plaintiffs, the second marriage of
Thiruvengadam Pillai with Arunachalathammal has been categorically denied in so many
places in the cross-examination. It cannot be stated that the plaintiffs have admitted the
factum of marriage by a single sentence recorded by way of evidence from the statement of
P.W.1. The entire evidence has to be read as a whole and the right inference drawn.
Therefore, a single sentence cannot be taken in isolation to draw any valid inference.
It is a settled principle of law that the Court must see as to how consistent the
testimony of the witness is and as to how and what answers fit in with the rest of the evidence
and the probabilities of the case.
(Para 91)
(B) Civil Procedure Code, 1908—Section 100—Second appeal—Suit for
declaration and permanent injunction—Defendant appellant contending that they
purchased property from heirs of second wife but failed to prove second marriage—
Plaintiff however proved that there was only one wife and entire share went in his
favour—Further defendant failed to prove that alleged second wife sold entire suit
property as neither vendor nor attestors have been examined as witness in support of
document—Hence, decree of suit by appellate Court calls for no interference.
On a reading of Exhibit A-2, it is clear from its recitals that the said document had
been made only as an evidence of the past transaction.
It is clear that a document in the nature of a memorandum evidencing a family
arrangement already entered into and which had been prepared as a record of what had been
agreed upon in order that there are no hazy notions in future need not be stamped or
registered. The non-production of the document marked as Exhibit A-2 before the Settlement
Officer cannot give rise to any serious doubt with regard to its validity or with regard to its
evidential value. Thus, the lower Appellate Court had come to the right conclusion with
regard to Exhibit A-2.
In such circumstances, it has been contended that the defendants cannot claim
any share in the suit properties which had belonged to Thiruvengadam Pillai. The claim of
the defendants that Thiruvengadam Pillai had a second wife by name Arunachalathammal
through whom he had three sons and two daughters and that they had together sold the
properties to J.E.S. Thomas, from whom the defendants had bought the properties, cannot be
sustained. The claim of the defendants that Arunachalathammal and her children had 6/7 th
share of the properties that had belonged to Thiruvengadam Pillai is not correct, since the
defendants could not prove by sufficient evidence that Thiruvengadam Pillai had a second
wife by name Arunachalathammal.
On the other hand, the contentions of the plaintiffs can be held to be valid, since no
sufficient proof has been shown to sustain the claims of the defendants to prove that
Arunachalathammal was the second wife of Thiruvengadam Pillai and no member of the
family of Thiruvengadam Pillai or of Arunachalathammal was examined as a witness in this
regard.
The lower Appellate Court had also come to the conclusion that the release deed in
Exhibit A-14, dated 07.07.1968, cannot be accepted due to the existence of the deed of
family arrangement, in Exhibit A-2, dated 14.03.1966. It has also been held that the
defendants had not shown sufficient proof to substantiate their claims with regard to
possession. On the other hand, the plaintiffs have shown that they have been in possession of
the suit properties by way of kist receipts and the patta proceedings.
Therefore, this Court is of the considered view that every document has to be read
as a whole to get at the right meaning which it attempts to convey and the oral evidence let in
by the witnesses have to be given a meaning in the context in which the statements are made.
In such view of the matter, the allegations made by the defendants, with regard to
inconsistency in the written document Exhibit A-2 and in the oral evidence of P.W.1, cannot
weaken the case of the plaintiffs. Exhibit A-4, which is a patta issued in favour of plaintiffs
and Exhibit A-5 which is the Inamdar Patta can be sufficient evidence to show the
possession of the plaintiffs in the suit properties, as held by the lower Appellate Court. The
claim of the defendants that Exhibit B-17 is a document more than 30 years old and hence,
presumption is to be drawn in its favour, under Section 19 of the Indian Evidence Act, 1872,
would be applicable only to original documents. Therefore, such a presumption cannot be
claimed by the defendants with regard to the copies of the said document filed in their favour.
(Paras 95, 96, 99, 100, 104 and 107)
Important Point
 Single sentence of evidence.—The entire evidence has to be read as a whole and
single sentence cannot be taken in isolation to draw any valid inference.
Case law.—2003 (2) MLJ 490; 2000 (3) MLJ 199 (SC)—relied on; 2001 (1) CTC
112; AIR 1986 SC 794; 2004 (3) MLJ 421; 2004 (1) MLJ 180 (SC); AIR 1940 Mad 523; 58
MLJ 7; AIR 1983 SC 684; AIR 1973 Mad 14; 2000 (1) TLNJ 102; AIR 1978 Guj. 193; Vol.
96 LW 93; AIR 1922 Mad. 71; 2005 (4) MLJ 52 (SC); 1995 LW 708; 1996 (1) MLJ 118;
1999 (2) LW 98; 2003 (1) MLJ 21; Vol. 89 LW 405; 1996 (2) LW 658; AIR 1984 Bom 19;
AIR 1962 Ori 40; AIR 1983 All 216; 1950 (1) MLJ 720; AIR (30) 1943 Mad 38 (2); AIR 1978
Mad 361; 2000 (II) C.T.C. 219; 2003 (1) CTC 745; 1995 (2) LW 831; Vol. 87 LW 397.—
referred.
Counsel.—Mr. R. Thiagarajan (Senior Counsel) for M/s. R.S. Ramanathan & Ms.
Uma Ramanathan, for the appellants (in S.A.No. 286 of 2005); Mr. M. Vallinayagam for M/s.
A. Sankara Subramanian (for R1, R3 to R12, R35 to R42), M/s. T. Kokilavane Ms. V. Akila
(for R32 to 34), M/s. D. Sadiq Raja (for R43 to R49), for the respondents (in S.A.No. 286 of
2005); Mr. R. Muthukumarasamy (Senior Counsel) for M/s. S.Meenakshi Sundaram, Mr. T.
Selvan, Mr. R.S.S. Prathap, for the appellants (in S.A.No. 1145 of 2006); Mr. C.
Vakeeswaran (for R1 to R4 and R6 to R12), M/s. T. Kokilavane, Ms. V. Akila, Mr.
M.Vallinayagam for M/s. A. Sankara Subramaniam, for respondents 29 t o 35.
JUDGMENT
M. JAICHANDREN, J.—These second appeals have been filed against the judgment
and decree, dated 11.10.2004, passed by the Principal Subordinate Judge, Tirunelveli, in A.
S. No. 88 of 2003, reversing the Judgment and Decree passed by the Court of the First
Additional District Munsif, Tirunelveli, in O.S.No. 572 of 1996, dated 30.04.2003.
2. Since both the above mentioned second appeals have arisen under the same facts
and circumstances, a common Judgment is passed.
3. Heard the learned counsels appearing for the appellants as well as for the
respondents.
4. The appellants in the Second Appeal S.A. (MD) No.286 of 2005 were the
defendants 1, 2 and 20 in the suit O.S.No.572 of 1996, on the file of the First Additional
District Munsif, Tirunelveli, and they were respondents 1, 2 and 19 in the first appeal
A.S.No.88 of 2003, on the file of the Principal Subordinate Judge, Tirunelveli.
5. The plaintiffs in the suit O.S.No.572 of 1996 had prayed for a judgment and decree
to declare that the plaintiffs are exclusively entitled to the plaint schedu1e lands and for a
consequential permanent injunction restraining the defendants therein, their men,
servants, agents and derivatives-in-interest from in any manner interfering with the plaintiffs
peaceful possession and enjoyment of the plaint schedule lands and for costs of the suit and
for other reliefs.
 6. It has been stated by the plaintiffs in the suit that the lands described in the plaint
schedule were originally Inam lands at Vijayaraghava Mudaliar Chatram Village,
Palayamkottai Taluk. After bifurcation of Tirunelveli Taluk, on 11.01.1982 Vijayaraghava
Mudaliar Chatram Village, which was originally in Tirunelveli Taluk, had been included
within the Palayamkottai Taluk limits. The Inam included extensive lands at Vijayaraghava
Mudaliar Chatram Village and the Inamdar had gifted the plaint schedule lands and other
lands by way of ‘Manibam’ to his accountant one Thiruvengadam Pillai, but the actual
possession and enjoyment of the plaint schedule lands were with one Arumuga Thevar, son
of Dakshinamoorthy Thevar of Vijayaraghava Mudaliar Chatram Village. Arumuga
Thevar was the father of the plaintiffs 1 to 7 and father-in-law of the 8th plaintiff. The said
Arumuga Thevar was cultivating the plaint schedule lands and he was paying the annual
rent to Thiruvengadam Pillai, till his death, on 28.09.1959 and thereafter, the rent was being
paid to his Paramasivam Pillai. In the year 1961, the said Paramasivam Pillai, by taking into
consideration the legal right which had been exercised by his father for a long time and on
the basis of the Inam patta issued to him on his succession to the estate of his father as his
legal heir, had sold away all the items of the suit properties to Arumuga Thevar, who was in
actual enjoyment of the lands, for valuable consideration, by and under a registered Sale
Deed, dated 07.01.1961. By virtue of the said registered sale deed, Arumuga Thevar, who
was already in physical possession and enjoyment of the suit lands, had become the lawful
owner of the said lands. Since then, Arumuga Thevar had stopped paying the rent to
Paramasivam Pillai. The said Arumuga Thevar, as the owner of the suit lands, had sold an
extent of 17 cents from out of the lands covered under the sale deed dated 07.07.1961, to
one minor Madasamy of Thirukalur, through a registered sale deed, dated 23.07.1964.
7. In the year 1966, a family arrangement had taken place among the members of the
family of Arumuga Thevar. All the properties of the family including the suit lands were
clubbed together and a division was effected. As per the family arrangement, the plaint
schedule properties were entirely and jointly allotted to the shares of the first wife and her
son and daughters and the second wife and her sons and daughters. The other properties in
the family were separately allotted to the share of Arumuga Thevar. From the date of the
family arrangement all the plaint schedule properties were in the joint possession and
enjoyment of all the said legal heirs of Arumuga Thevar. Subsequent to the fami1y
arrangement, a yadast, dated 14.03.1966, recording the earlier allotment of the properties to
Arumuga Thevar and other share holders, was signed.
6. In the year 1963, Inam was abolished by the Government under Act 26 of 1963.
Proceedings were initiated by the Government for the grant of Ryotwari Patta to the eligible
persons through Settlement Proceedings. The Settlement Tahsildar No. 1, Kovilpatti, had
initiated suo motu enquiry in the year, 1971, under the provisions of the said Act. Since
the enquiry proceedings had been conducted without due notice being given to the plaintiffs,
the Settlement Tahsildar No.1, Kovilpatti, had conducted further proceedings
thereafter, in accordance with the provisions of the Act and had passed the final order, on
08.01.1973, ordering the grant of Ryotwari patta in favour of the plaintiffs with regard to the
plaint schedule lands. The said patta was ordered to be granted under Section 12 (1) read
with Section 10 (i) (ii) of Act 16 of 1963. No appeal had been preferred against the order and
hence, it has become final.
9. Based on the said order, entries were made in the ‘A’ Register (Re-sett1ement
Register) in the village and as per the ‘A’ Register, the plaintiffs alone are the pattadars of
the plaint schedule lands. The Revenue Patta in the name of the plaintiffs, as per the ‘A’
register, bears No.574. After the grant of Ryotwari Patta, the plaintiffs have been paying
the ‘kist’ to the Government, as owners and pattadars of the suit schedule lands. The
defendants had no title or possession over the suit schedule lands at any point of time.
However, the defendants 1, 2 and 21 had started making claims over the suit schedule lands
and they are also attempting to enter into sale negotiation with third parties, with regard to
certain portions of the said lands, without having any legal right over the said properties.
It was found that the said defendants had managed to include their names in the new patta
No.883, relating to the suit schedule lands, with the aid of the Tahsildar, Palayamkottai,
showing the lands as though they had been sub-divided. The said defendants had also
obtained separate pattas. The plaintiffs’ have claimed that such proceedings cannot bind
them as the lawful title over the suit schedule properties are still vested with them. No
notice or opportunity was given to the plaintiffs in the proceedings alleged to have taken
place before the Tahsildar, Palayamkottai, for the sub-division of the properties and for
the grant of separate patta. The plaintiffs had preferred appeals before the Revenue
Divisional Officer, Tirunelveli, for cancellation of the illegal orders passed by the Tahsildar,
Palayamkottai, ordering sub-division and grant of patta with regard to the suit schedule
lands. The appeal was taken on file and an interim order had been passed staying the portion
of the order of the Tahsildar, Palayamkottai.
10. The plaintiffs had further stated that the defendants 3 to 20 are also claiming bogus
title over portions of the suit schedule lands, along with the defendants 1, 2 and 21. The said
defendants were making illegal attempts to disturb the peaceful possession and enjoyment of
the suit schedule properties by the plaintiffs. Hence, the plaintiffs had filed the Suit in O.S.
No. 572 of 1996, on the file of the First Additional District Mnisif, Tirunelveli.
11. The averments in the written statement filed by first and second defendants in
O.S.No.572 of 1996 are as follows:
The suit filed by the plaintiffs is not sustainable and that the plaintiffs are not entitled
to the reliefs prayed for. Since the suit had been filed by the plaintiffs without having any
basis for their claims and as it has been filed only to harass the defendants the suit is not
maintainable in law or on facts and therefore, it is to be dismissed with costs. Since the suit
schedule lands belong to the defendants, the plaintiffs have never been in possession or
enjoyment of the said properties.
12. Prior to the abolition of Inam, the suit schedule properties belonged to
Thiruvengadam Pillai. Thiruvengadam Pillai had a son through his first wife by the name of
Paramasivam Pillai. Arunacha-lathammal is the name of the second wife of Thiruvengadam
Pillai. Thiruvengadam Pillai had three sons and two daughters through his second wife,
Arunachalathammal. Thiruvengadam Pillai had died, on 28.9.1959. At the time of his death,
he had seven legal heirs. The second wife of Thiruvengadam Pillai and her children together
had 6/7th portion of the estate of Thiruvengadam Pillai. Paramasivam Pillai born through the
first wife, was entitled to the remaining 1/7th share of Thiruvengadam Pillai’s properties.
13. By a sale deed, dated 20.7.1961, the properties belonging to Arunachalathammal
and her five children had been purchased by one J. E. S. Thomas, for a consideration of
Rs.800/-. Thereafter, the said J.E.S. Thoams, had been in enjoyment of the properties. On
1.2.1962, the second defendant had purchased 41/2 acres of land and the first defendant had
also purchased 41/2 acres of land from J.E.S. Thomas. Since then, they have been in
enjoyment of the properties purchased by them.
14. The plaint schedule properties were originally in an Inam Village. After the Inam
was abolisbed by The Tamil Nadu Act 26 of 1963, the Settlement Tahsildar, Kovilpatti, had
initiated suo motu proceedings to grant patta, in accordance with the procedure
established by law. K. Ayya Subramania Mudaliar was the Inamdar of the Inam Village. He
had raised the plea that all the suit schedule properties belonged to him, as he had purchased
the same. K. Ayya Subramania Mudaliar took the stand that Arumugha Thevar had written a
release deed, dated 7.6.1968, releasing the properties in his favour. Arumugha Thevar had
purchased the properties from Paramasivam Pillai, son of Thiruvengadam Pillai, through his
first wife.
15. Paramasivam Pillai had only 1/7th share of the estate of Thiruvengadam Pillai
since the Settlement Tahsildar did not have the authority to state as to what share of the
properties each of the defendants had, he had granted a Joint Patta. No appeal had been filed
against the same. The second defendant had filed a suit in O.S.No. 155 of 1974, on the file of
the District Munsif Court Tirunelveli, making the first defendant and K. Ayya Subramania
Mudaliar as parties thereto. The said suit had been decreed in favour of the first defendant in
the present suit. Based on the sale deed, the order of the Settlement Tahsildar and the report
of the Commissioner, the lower Court had passed the said decree. Later, K. Ayya Subramania
Mudaliar had preferred an appeal before the High Court of Judicature at Madras, Chennai.
Even though the Commissioner had measured the portion of the properties and allocated
the same in favour of the first defendant, the final decree could not be granted since the
relevant fee for the same had not been paid, initially. Therefore, a suit in O.S.No.12 of 1989
had been preferred, on the file of the District Munsif, Tirunelveli, for partition. Arumugha
Thevar and the plaintiffs knew full well about the proceedings of the Settlement Tahsildar
and the appeal proceedings as well as the proceedings in the suit. Since K. Ayya Subramania
Mudaliar had lost his case, the plaintiff had filed the suit at the instance of K. Ayya
Subramania Mudaliar, the predecessor-in-title of the plaintiffs. Having granted the release,
the plaintiffs and their predecessors-in-title cannot have any right in the suit schedule
properties relating to the possession and enjoyment of the said properties. From the time of
the purchase of the properties, the first and second defendants have been in enjoyment of
their share of the properties. They are also paying kists in relation to the said properties.
Further, the claims made by the plaintiffs regarding adverse possession cannot be sustained.
16. All the claims made by the plaintiffs have to be proved by them, as they have not
been accepted by the defendants. The plaintiffs have to prove that there was a family
settlement amongst the family members of Arumugha Thevar in the year, 1966, and that in
the said settlement, the suit schedule properties were allotted to the wives of Arumugha
Thevar and their children. Further, the plaintiffs have to prove that to subsequent the
family settlement, the suit, schedule properties were in the joint possession and enjoyment of
the family members and that there was a Yadast made, subsequently. Since the
plaintiffs and their predecessors-in-title did not have any right in the suit schedule properties
in the year 1971, the Settlement Tahsildar had not issued any notice to them, as it was
unnecessary. However, the Settlement Tahsildar had issued sufficient notice in accordance
with law before initiating the proceedings to all those who had rights in the properties.
17. The defendants did not have any knowledge of any patta being issued to the
plaintiffs with regard to the suit schedule properties. No notice had been received by the
defendants with regard to the same. The order dated 8.1.1973, is not valid in the eye of law
and therefore, it is not binding on the defendant. If any entries or changes have been made in
the Revenue Records, based on the said order, it would not remain valid and no right would
accrue based on the same. It is wrong on the part of the plaintiffs to state that the defendants
did not have any right in the suit schedule properties and the plaintiffs did not have any right
to question the possession or the enjoyment of the suit schedule properties by the defendants.
It is not true to state that the defendants with the help the Tahsildar Palayamkottai, had
obtained a Patta in Patta No.883. It is only in accordance with the relevant law that sub-
divisions have been validly made. All the subsequent proceedings are true and valid in the
eye of law. It is improper for the plaintiffs to have obtained a stay order against the order of
the Tahsildar, Palayamkottai, after a lapse of two years, by filing an appeal before the
Revenue Divisional Officer Tirunelveli. No notice of the proceedings had been received by
the defendants from the Revenue Divisional Officer, Tirunelveli. The description of the suit
schedule properties have not been given properly and the relationship of the parties in the suit
have also not been properly given. The prayer in the suit cannot be granted, as the various
claims of the parties concerned have not been clearly stated in the plaint. Further, the suit is
bad in law due to defects of misjoinder of parties and misjoinder of cause of action. Inspite of
the detailed report filed by Commissioner in O.S.No.l55 of 1974, with regard to the
properties concerned, it is improper for the plaintiffs to re-agitate the matter by way of filing
the present suit by describing the properties differently. Hence, the suit is to be dismissed
with costs.
18. Based on the averments made by the plaintiff in the plaint and in the written
statement filed in the suit O.S.No.572 of 1996 on the file of the First Additional District
Munsif Court, Tirunelveli the trial Court had framed the following issues for consideration:
“(1) Whether the necessary parties have not been made as parties in the suit?
(2) Whether Paramasivam Pillai, who had the suit schedule properties to
Arumugha Thevar, had a right only with regard to 1/7th share of the suit
schedule properties?
(3) Whether the plaintiffs are entitled to the relief of declaration as sought for
in the plaint?
(4) Whether the plaintiffs are entitled to the relief of permanent injunction as
prayed for in the plaint?
(5) What other reliefs the plaintiffs are entitled to?”
19. P.W.1 to P.W.5 have been examined on behalf of the plaintiffs. Exhibits A-1
to A-20 have been marked in favour of the plaintiffs. D.W.1 to D.W. 4 have been examined
as witnesses on behalf of the defendants and Exhibits B-l to B-48 have been marked as
Exhibits in favour of the defendants.
20. It has been contended on behalf of the defendants in the suit and the appellants
herein that they had produced Exhibit B-17 to show that the suit properties were purchased
by J.E.S.Thomas from Arunachalathammal and her children. J.E.S.Thomas, in turn, had sold
the properties to the defendants. The said documents relating to the sale of the suit
properties were marked as Exhibits in O.S.No.155 of 1974. Though the plaintiffs were not
parties to the said suit and the subsequent proceedings thereon, the judgment in the said
proceeding have been produced by the defendants before the trial Court as evidence to
substantiate their claims of purchase of the properties by J.E.S. Thomas from
Arunachalathammal and her children and the subsequent purchase by the defendants from
J.E.S.Thomas. The plaintiffs had placed reliance an Exhibit B-1, the document filed in the
appeal arising out of O.S.No.155 of 1974. The plea of the plaintiffs that they were not parties
to the said proceedings will not destroy the evidentiary value of the said documents.
21. The contention by the plaintiffs, who are the respondents in the present second
appeals, that the last page of Exhibit B-17 was missing would not automatically, confer the
title on the plaintiffs, unless they could establish that they had acquired the title with regard
to the suit properties under Exhibit A-2.
22. A further contention raised on behalf of defendants in the suit and the appellants in
present second appeals is that Arumugha Thevar executed a release deed to K. Ayya
Subramania Mudaliar. The effect of Exhibit B-14 is sought to be nullified by the plaintiffs by
contending that the defendants cannot approbate and reprobate. The reliance on Exhibit B-14
by the plaintiffs is only for the purpose of demonstrating that subsequent to the alleged
family arrangement, in the year 1966, Arumugha Thevar had executed a document in favour
of K. Ayya Subramania Mudaliar and this shows that Exhibit A-2 was only a make-believe
arrangement for the sake of the suit and cannot be taken to be a true and valid document.
23. It has also been contended on behalf of the defendant that admission of P.W.1
relating to the death of the first wife during the life time of Thiruvengadam Pillai is of real
significance. The claim made on behalf of the plaintiffs that it is only an innocuous slip,
while letting in evidence and that it will not have any legal consequence, if it is taken,
in the context of all the materials placed before the Court, cannot be sustained. Therefore,
based on a correct analysis of the evidence available on record, the trial Court had rightly
come to the conclusion that the claims made by the plaintiffs were not sustainable in law or
on facts. Therefore, the trial Court had rightly dismissed the suit filed by the plaintiffs in
O.S.No.512 of 1996.
24. The learned counsel appearing on behalf of the appellants in Second Appeal
No.1145 of 2006, who were the defendants 3, 5 to 10, 22 and 23 in O.S.No.572 of 1996, had
stated, in the written statements filed on their behalf, that Thiruvengadam Pillai, who was
admittedly the origina1 owner of the suit properties, had two wives. Thiruvengadam Pillai’s
first wife had pre-deceased him leaving behind one son by the name of Paramasivam
Pillai. Thiruvengadam Pillai had a second wife by the name of Arunachalathammal, who had
three sons and two daughters. After the death of Thiruvengadam Pillai, Arunachalathammal
and her five children had executed a sale deed, dated. 20.7.1961, marked as Exhibit B-17,
conveying the suit properties in favour of J.E.S.Thomas. J.E.S. Thomas had, in turn, sold 4.5
acres in survey No. 192/2 in favour of the first defendant and another 4.5 acres same Survey
number in favour of the second defendant and an another extent of 4.33 acres in favour of
D-21 and that the other defendants had purchased the portions of the said properties from D-
21. Paramasivam Pillai was only one of the 7 heirs of Thiruvengadam Pillai and that the sale
by Paramasivam Pillai, under Exhibit A-1, to Arumugha Thevar could only be with reference
to his 1/7th share of the suit properties. Therefore, neither Arumugha Thevar nor his
successors, who are the plaintiffs in the suit, could claim title to the entire suit properties.
Arumugha Thevar had executed a registered release deed, on 7.6.1968, marked as Exhibit
B-14 and therefore, whatever was purchased by Arumugha Thevar, namely, 1/7 share of
Paramasivam Pillai in the suit properties had also been lost.
25. It was also contended on behalf of the defendants that the family arrangement
pleaded by the plaintiffs was false and that Exhibit A-2, said to be a record of the family
arrangement, required registration, since it brought about a division in the properties in
question. Since the said document in Exhibit A-2 was unstamped and unregistered, it could
not be relied on by the plaintiffs to establish their title in the suit properties.
26. The trial Court, after a detailed consideration of the facts and the law, had found
that Thiruvengadam Pillai had two wives and six children and that Paramasivam Pillai had
only 1/7th share in the suit properties after the death of Thiruvengadam Pillai. Exhibit A-1
executed by Paramasivam Pillai could, therefore, convey only 1/7 th share in the suit
properties to Arumugha Thevar and in view of Exhibit B-14, which is said to be a release
deed executed by Arumugha Thevar, he had lost even that 1/7 th share. The trial Court had
also found that Exhibit A-2 was invalid and inadmissible for want of registration. The trial
Court had further found that in view of Exhibit B-17, the remaining 6/7 th share in the suit
properties had been sold by 6 heirs of Thiruvengadam Pillai in favour of J.E.S. Thomas
and it had also been found that though the last page of Exhibit B-17 was missing, in view
of the fact that the said document had been marked as an exhibit in the earlier proceedings to
which the first and second defendants were parties, the defendants had acquired valid title.
27. It has also been found by the trial Court that under Exhibit A-14, dated 07.07.1968,
Arumuga Thevar, had released the suit properties purchased by him under Exhibit A-1 in
favour of Ayya Subramania Mudaliar. It was also held that the sub-divisions were effected in
respect of the properties purchased by the defendants 1 and 2, who are the appellants 1 and 2,
in the present Second Appeal, and pattas were granted in their favour. It was also held that no
document had been filed to show that the sub-divisions were cancelled and a fresh
enquiry was held by the Tahsildar. The encumbrance certificate produced by the defendants
does not show that the plaintiffs had purchased the suit property. Further, no documents have
been filed by the plaintiffs to show that the change was effected in the village accounts after
the cancellation of the sub-divisions. Therefore, the plaintiffs had not established their
possession. Based on the above findings, the trial Court had dismissed the suit in O.S.No. 572
of 1996, by its judgment and decree, dated 30.4.2003.
28. Therefore, the plaintiffs had filed an appeal against the judgment and decree of
the trial Court, dated 30.4.2003, in A.S.No. 88 of 2003, on the file of the Principal
Subordinate Court, Tirunelveli. Based on the rival contentions, the lower Appellate Court had
framed the following point for determination, which is as follows:—
“Whether the present appeal is to be allowed or not?”
29. After a detailed discussion on various aspects, the lower Appellate Court had found
that under Exhibit A-2, dated 14.03.1966, the family arrangement had been made by which
the properties were allotted to the wives and children of Arumuga Thevar. Exhibit A-2,
cannot be said to be inadmissible. The lower Appellate Court had also held that Exhibit A-4,
dated 08.01.1972, which is the order passed by the Settlement Tahsildar is final. With regard
to the aspect of possession, it was held that the Kist receipts marked as Exhibits A-8, A-9,
A-12, A-13, A-14 and A-17, would establish the fact that the plaintiffs are in possession of
the properties in question. Since the plaintiffs were not parties to the suit in O.S.No.155 of
1974, A.S.No.29 of 1980, S.A.No.1572 of 1988 and O.S.No.12 of 1989 and A.S.No. 41 of
1996 filed by Pency Grace and Mercy Dharamaraj, the judgments rendered therein and the
Exhibits B-4 to B-12 cannot be binding on the plaintiffs. It was also held that Exhibit B-17
did not contain the last page and therefore, the properties purchased by J.E.S. Thomas from
Arunachalathammal and others were not established. It was also held that Exhibit A-2, which
is a document with regard to the family arrangement, need not be registered, since it was only
a record of a prior partition.
30. It was also held that the release deed, namely, Exhibit A-14, dated
07.07.1968, cannot be accepted. According to the family arrangement, dated 29.01.1966, the
suit properties were allotted to the appellants. Further, no documents had been filed on behalf
of the appellants in the present Second Appeal to show that they were in possession of the
suit properties. It was also held that the plaintiffs in the suit and the respondents in the
Second Appeal had proved their possession with regard to the suit properties.
 31. Based on the above findings, the lower appellate Court had reversed the judgment
and decree of the trial Court, dated 30.04.2003, and decreed the suit as prayed for by its
judgment and decree, dated 11.10.2004.
32. The defendants 1, 2 and 20 are the appellants in the Second Appeal in S.A.No. 286
of 2005. The said Second Appeal has been admitted by this Court, on 30.03.2005, on the
following substantial questions of law, which had arisen for consideration—
“(i) Whether the failure of the First Appellate Court to frame issues for consideration is
miscarriage of justice?
(ii) Whether the previous litigations between the appellants 1 and 2 and the erstwhile
Inamdar is binding upon the plaintiffs?
(iii) Whether the order passed by the Settlement Tahsildar for the suit property for the
second time is valid in law?
33. The Second Appeal had been preferred by the appellants, raising various grounds,
inter alia, stating that the First Appellate Court had passed the judgment and decree contrary
to law, the weight of evidence and the probabilities of the case. The First Appellate Court had
failed to apply the principles of law applicable to the case. It has also been stated that the
First Appellate Court had failed to consider the specific issues raised for consideration.
34. It had also been stated that the First Appellate Court ought to have held that the
previous judgments rendered in O.S.No. 155 of 1974 and O.S.No.12 of 1989 and in the
consequential appeals shall be binding on the plaintiffs.
35. The defendants 3, 5 to 10, 22 and 23 have filed the Second Appeal in S.A.(MD)
No. 1145 of 2006. The said Second Appeal has been admitted on 23.11.2006, on the
following substantial questions of law arising for consideration.
“1. Whether the First Appellate Court had failed to note that the suit is barred
by res judicata?
2. Whether the First Appellate Court had erred in giving a perverse finding
regarding Exhibits B-1, B-4 to B-10 and Exhibit A-2?
3. Whether the First Appellate Court had erred in not framing points for
determination by following the Order XLI, Rule 31 of the Civil Procedure
Code?
4. Whether the First Appellate Court had failed to consider the impact on
Exhibit B-14 in a proper perspective, in the light of subsequent acts of
enjoyment of property by the parties to the suit?”
36. The appellants in the said Second Appeal had raised various grounds stated in
the grounds of appeal while challenging the findings of the lower Appellate Court.
37. The main point that arises for consideration in the Second Appeals is as to whether
the plaintiffs in the suit and the respondents in the Second Appeals are entitled to a
declaration of their title in the suit properties and for permanent injunction as prayed for by
them by establishing their title and possession over the suit properties.
38. The appellants in the above Second Appeals have contended that a reading of the
plaint shows that a sale deed, dated 07.07.1961, had been executed by Paramasivam Pillai,
son of Thiruvengadam Pillai in favour of Arumuga Thevar, the predecessor-in-interest of the
plaintiffs. However, it is not shown or proved that the said Paramasivam Pillai was the only
heir of Thiruvengadam Pillai, when the defendants in the written statement had categorically
alleged that Arunachalathammal was the second wife of Thiruvengadam Pillai and both she
and her children were entitled to 6/7 th share and that Paramasivam Pillai was entitled to only
1/7th share. When it has been categorically stated by the defendants in the written
statement filed by them that Paramasivam Pillai was entitled to only 1/7 th share in the
properties of Thiruvengadam Pillai, it is for the plaintiffs to have established that
Paramasivam Pillai was the only heir of Thiruvengadam Pillai and that he was competent to
sell the entire properties of Thiruvengadam Pillai in favour of Arumuga Thevar, under
Exhibit A-1. No reply statement had been filed by the plaintiffs in the suit denying the
allegations regarding the entitlement of Paramasivam Pillai to only 1/7 th share of the suit
properties. The plaintiffs had not discharged their burden of proving their case that
Paramasivam Pillai was entitled to the entire suit properties by acceptable evidence. P.W.1,
in his chief examination, had clearly stated that the first wife of Thiruvengadam Pillai had
pre-deceased him. It was not denied by P.W.1 that Arunachalathammal was not the
second wife of Thiruvengadam Pillai.
39. It is also relevant to note that Exhibit B-1 was relied upon by the plaintiffs to show
that Arunachalathammal had passed on a letter enabling Paramasivam Pillai to get patta in
his name. If Arunachalathammal is not a legal heir entitled to a share in the suit properties,
there would be no need for such a letter being given by her. Especially, in view of the fact
that the claim made on behalf of the plaintiffs that the said letter was an authorization to
enable Paramasivam Pillai to convey the entire suit properties in favour of Arumuga Thevar.
40. It is a settled position of law that any right in respect of an immovable property
cannot be parted away except by way of a registered instrument. Arunachalathammal had
not released or relinquished her interest in the property. Therefore, the plaintiffs cannot
claim that the entire properties of Thiruvengadam Pillai was sold by Paramasivam Pillai.
41. It was also contended on behalf of the appellants that in the absence of any specific
evidence, plea or proof that Paramasivam Pillai is the only heir to Thiruvenkatam Pillai, the
plaintiffs cannot be said to have established the title to the suit schedule property under
Exhibit A-1. With regard to the question as to whether the family arrangement under Exhibit
A-2, is true and valid, it has been stated that the plaint is silent about the date of the family
arrangement. It only states that as per the family arrangement, the suit schedule properties
were entirely and jointly allotted to the share of the first wife, her sons and daughters and the
second wife and her son and daughter.
42. It has also been stated in the plaint that from the date of the family
arrangement, the schedule properties are in the possession and enjoyment of the legal
heirs of Arumuga Thevar. Subsequent to the family arrangement, a yadast, recording the
earlier allotment of the properties to Arumuga Thevar on the one hand and the remaining
shareholders on the other had been signed. However, there is no indication with regard to the
date on which the family arrangement had taken place. The alleged family arrangement
yadast bearing the date 14.03.1966 does not show clearly that the properties in question were
being enjoyed jointly by the members of the family till the date of the yadast and that the said
properties would be enjoyed separately, thereafter, and that the yadast was made only to
record their separate enjoyment of the properties concerned. The evidence of P.W.1 clearly
shows that it is only under Exhibit A-2, the sharers had partitioned the properties. It is,
therefore, clear that the allotment of the properties to the respective sharers has been done
only under the said document Exhibit A-2, dated 14.3.1966.
43. It has also been contended on behalf of the appellants that a combined reading of
the evidence of P.W.1 and the recitals in Exhibit A-2, makes it clear that the respective
sharers of the properties got their shares only under the said document and not at any point of
time prior to the said document. Neither the body of the plaint nor the cause of action
paragraphs indicate the date on which the family arrangement was entered into. Exhibit A-2,
said to be relating to a family arrangement, had not been produced by the plaintiffs before
the Settlement Tahsildar to resist the claims of the defendants in the suit and the appellants in
the present Second Appeals.
44. It is relevant to note that the plaintiffs were able to produce only Exhibit A-1 to
support their claim for patta. Therefore, Exhibit A-2, cannot be said to be a genuine
document. Assuming, without admitting, Exhibit A-2 to be a true document the question
arises as to whether the said document is admissible in evidence, since it is unstamped and
unregistered. The question would also arise as to whether the said document can form the
basis for the claims made by the plaintiffs regarding the title to the suit properties.
45. The learned senior counsel appearing on behalf of the appellants had relied on
the decision of a Division Bench of this Court in A.C. Lakshmipathy and another v. A.M.
Chakrapani Reddiar and five others, 2001 (1) CTC 112, to support the proposition that the
document Exhibit A-2, was not admissible in evidence for the reasons stated in the said
decision. It has been held that an unstamped and unregistered document cannot be admitted
as evidence and it has to be ignored. Therefore, any finding rendered on the basis of the said
document by the lower appellate Court is clearly unsustainable.
46. It was also submitted that the next question that arose for consideration is as to
whether the proceedings of the Settlement Tahsildar, dated 08.01.1973, had become final. It
was stated that the finality of the order passed by the Settlement Tahsildar was only for the
purpose of the Tamil Nadu Inam Estates (Abolition and Conversion into Ryotwari) Act,
1963. It will not bar the jurisdiction of the Civil Court to entertain the suit in the event of a
dispute of title over the property in question amongst the rival claims.
47. The learned senior counsel appearing on behalf of the appellants had relied on
the decision of the Supreme Court in The State of Tamil Nadu v. Ramalinga Samigal Madam
with State of Tamil Nadu v. K.L.M. Ramamurthy and others, reported in AIR 1986 SC 794,
wherein, it was held that the Civil Court’s jurisdiction to decide the question of title is not
barred. The patta proceedings do not constitute evidence of title to the immovable
properties, particularly, when the same is in dispute. Therefore, the order of the Settlement
Tahsildar, dated 08.01.1973, cannot come to the aid of the plaintiffs.
48. It has been further submitted that the other question that would arise for
consideration is as to whether the proceedings commencing in O.S.No. 155 of 1974 and
ending with the judgment and decree passed in the Second Appeal No. 1572 of 1988,
declaring the rights of the appellants, is binding on the plaintiffs. It has been stated on behalf
of the appellants that there is no dispute with regard to the identity of the property claimed by
the plaintiffs as well as the defendants. It is only with a view to get over the judgment in
O.S.No. 155 of 1974 and the further proceedings thereon, the plaintiffs have now chosen to
raise the contention that the property which the defendants have claimed to have purchased
from J.E.S. Thomas is different from the suit property. Such a contention has been raised for
the first time at the stage of the present Second Appeals and the same is clearly
unsustainable.
49. It has also been contended on behalf of the appellants that the plaint, filed in the
suit O.S.No. 155 of 1974, does not contain the basic pleas that should have been raised by the
plaintiffs. No amount of evidence would be of help to the plaintiffs without the necessary
pleadings being made, as held in Privy Council 58 MLJ 7 at 9. The Lower Appellate Court
had rendered a finding in favour of the plaintiffs only on the basis of Exhibit A-2, said to
be a family arrangement. The said document is clearly inadmissible in evidence.
50. It is not the case of the plaintiffs that de hors the document Exhibit A-2, they have
obtained title by adverse possession. In fact, the plea of adverse possession has not been
raised by the plaintiffs. If Exhibit A-2, is found to be inadmissible in evidence, the entire case
of the plaintiffs should be negatived. Therefore, the plaintiffs, who are the respondents in the
above said Second Appeals, have raised a new plea during the course of their arguments that
the plaintiffs’ title to the suit property is by way of inheritance. Since the plaintiffs have not
raised an alternative plea in the plaint filed by them in O.S. No. 572 of 1996, the said plea
cannot be raised at this stage. Even in the document Exhibit A-2, it has been stated that the
parties had agreed to get the document registered. If Exhibit A-2 is only a record of a past
event there is no need for such a document to be registered. In view of the fact that the
allotment of the shares had taken place only on the date of the said document and considering
the admission of P.W. 1 that it is under the said document the properties have been allotted, it
becomes clear that Exhibit-2, is inadmissible in evidence, as it has not been registered.
Therefore, the findings of the lower Appellate Court in favour of the plaintiffs, on the basis of
Exhibit A-2, is clearly unsustainable.
51. It has also been contended on behalf of the appellants that the Lower Appellate
Court relied on Exhibits A-8, A-9, A-12, A-13, A-14 and A-17, which are kist receipts, for
the purpose of holding that the plaintiffs have established their possession. It is relevant to
note that Exhibits A-12, A-13, A-14 and A-17 relate to a period subsequent to the filing of
the suit. Only two kist receipts, namely, in Exhibits A-8 and A-9 are prior to the said suit. The
defendants have also filed kist receipts in Exhibits A-8 and A-12 as proof of their
possession. It has been pointed out that this Court in Velayudham Pillai v. Sandhosa Nadar
and others, reported in 1973 MLJ 44, had held that the grant of patta and the subsequent
payments of tax by the plaintiff on the basis of such a patta cannot establish the
plaintiffs’ title, when there are rival claims with regard to the title of the suit property.
Further, it cannot be taken to show that the plaintiff was in possession of the property,
unless, there are other evidences placed before the Court to show actual possession of the
property in question. Therefore, it is clear that neither the order of the Settlement Tahsildar
dated 08.01.1973, nor the kist receipts in Exhibits A-8, A-9, A-12, A-14 and A-17 are
sufficient to establish the possession of the plaintiffs, particularly, when the title of the
property is disputed.
52. With regard to the submissions made by the plaintiffs that the defendants had not
established their claim that Arunacha-lathammal and her children were entitled to 6/7 th share
of the suit property and the same was conveyed to J.E.S. Thomas, it is the contention of the
appellants that it is a well settled legal position, as seen from the decisions of two Division
Benches of this Court in P. Thangavelu v. R. Dhanalakshmi Ammal and others, 1995 L.W.
708, and in Kannu Reddiar v. T. Palanirajan and others, 1996 (1) MLJ 118, wherein, it was
held that the plaintiff shall succeed or fail on the basis of his own pleadings and evidence and
not on the basis of any defect in the pleadings of the defendants. The plaintiff cannot pick
holes in the case of the defendants and succeed on that basis.
53. With regard to the claim of the plaintiffs that since Exhibit A-1 is not denied by the
defendants it stands proved, the contention of the appellants in the present Second Appeals is
that Exhibit A-1 alone cannot advance the case of the plaintiffs, since they claim to have
purchased the entire property of Thiruvengadam Pillai. The case of the defendants that the
vendor in Exhibit A-1 is entitled to 1/7 th share and the remaining 6/7 share was owned by
Arunacha-lathammal and her children, as set out in the written statement has not been denied
by the plaintiffs.
54. It has been contended on behalf of the plaintiffs that there is no need to file a reply
statement denying the same. The said contention is misconceived, as the law is well settled
that the plaintiffs can succeed or fail on their own pleadings and not on the basis of any
error committed by the defendants in their pleadings. Further, the identity of the property
claimed by the plaintiffs under Exhibit A-2, and the identity of the property claimed by the
defendants in the suit and the appellants in the present Second Appeals was never in
dispute. It is only during the course of the arguments made before this Court at the stage of
the final hearing of the second appeals, the respondents’ counsel, for the first time, has raised
the plea with regard to the question of identity of the properties concerned. Since the
plaintiffs had raised the contention that Exhibit A-2, need not be stamped or registered, since
it is only a document recording a past event, the defendants have contended that the lower
Appellate Court ought to have given a finding as to the purpose for which such a document
had been relied upon.
55. On the basis of the recitals of the document and on the evidence of
P.W.1, Exhibit A-2 cannot be taken as a document recording a past event. Since the plaint
and the cause of action paragraphs in the suit O.S.No. 572 of 1996, has been silent with
regard to the date on which the past event of the allotment had taken place, it is clear that the
said document had been created only for the purpose of sustaining the claims made by the
plaintiffs in the suit. Further, the argument put forth on behalf of the plaintiffs with regard
to inheritance cannot be sustained, since there is no plea to that effect in the plaint filed in the
suit. Further, the order, dated 08.01.1973, passed by the Settlement Tahsildar cannot support
the claim of the plaintiffs to establish their title over the suit property. Exhibit A-5 cannot be
taken to prove the title of Paramasivam Pillai. Even though he is shown as the Inamdar, it is
not clear as to whether Paramasivam Pillai was the owner of the entire suit property or that he
is entitled to only 1/7 th share of the property. In the light of Exhibit B-1, relied upon by the
plaintiffs to show that Arunachalathammal had authorized Paramasivam Pillai to convey the
entire property in favour of Arumuga Thevar, it is not open to the plaintiffs to deny the status
of Arunachalathammal as the second wife of Thiruvengadam Pillai, or the claim regarding
the entire property. Even though the plaintiffs had relied on Exhibit B-1, they have submitted
that the proceedings in O.S.No. 155 of 1974 and the further proceedings thereon are not
binding on them. As such the inconsistent stand taken by the plaintiffs cannot be sustained in
the eye of law. A mere letter said to have been given by Arunachalathammal and her children
cannot deprive them of their right in the immovable property. In fact, Exhibit B-1 can only be
taken to reinforce the case of the defendants that Arunachalathammal and her children were
the owners of 6/7th share of Thiruvengadam Pillai’s property.
56. It has been contended by the learned counsel appearing on behalf of the plaintiffs
that it is the case of the plaintiffs that the Inam patta had originally stood in the name of
Thiruvengadam Pillai. By succession, Paramasivam Pillai became the pattadar by Exhibit A-
5 and he alone was receiving the annual rent from Arumuga Thevar, as an absolute owner of
the property in entirety. He had sold the same to Arumuga Thevar, under Exhibit A-1.
Therefore, it is not the case of the plaintiffs that Paramasivam Pillai had got only 1/7 th share.
The plaintiffs had not admitted the claim of the defendants that there were other heirs to
Thiruvengadam Pillai. Further, the defendants are not entitled to rely on the documents,
which have not been exhibited during the proceedings in the suit. The judgment in
S.A.No. 1572 of 1988, dated 13.07.2000, has not been produced or marked. Therefore, they
cannot rely or take support from the same.
 57. It has also been stated that the plaintiffs’ claim of title under Exhibit A-1, in
respect of the entirety of the suit properties is proved as Exhibit A-1 deals with the entire suit
property. The Inam Patta stood in the name of the vendor Paramasivam Pillai in respect of
the entirety of the property. No other person’s name has been found in the Inam Patta. The
specific case of the plaintiff is that Arumuga Thevar was paying annual rent only to
Paramasivam Pillai after the demise of Thiruvengadam Pillai. Such specific pleadings made
by the plaintiffs have not been denied by the defendants either in the written statement or in
the evidence let in, in support of their case. Exhibit A-1 has not been denied by the
defendants. On the other hand, it has been admitted by them, as per Order VIII, Rule 5 of the
Civil Procedure Code, 1908, which says that when the alleged facts have not been
specifically denied in the written statement by the defendants, they shall be taken to have
been admitted. Since the admitted facts need not be proved, Exhibit A-1 has to be taken to
have been proved. Thus, the plaintiffs had proved their claim of title under Exhibit A-1 in
respect of the entirety of the suit properties.
58. It is the case of the defendants that Paramasivam Pillai is not the owner of the
entirety of the property and that he is entitled to only 1/7 th share of the property. The claim of
the defendants that Thiruvengadam Pillai had a second wife by name Arunachalathammal
and that she had three sons and two daughters has not been proved through acceptable oral
and documentary evidence. The defendants cannot rely on mere slip answers of the plaintiffs’
witnesses to support their claims. Further, the defendants have not proved Exhibit B-1,
since neither the vendor nor the attestor of Exhibit B-1 was examined. Similarly, Exhibit B-
17 has also not been proved by examining the vendor or the attestor. Even though the last
page of Exhibit B-17, containing the schedule of properties, was missing, no steps had been
taken by the defendants to explain it with convincing reasons.
59. The learned senior counsel appearing on behalf of the defendants in the suit
O.S.No. 572 of 1996 and the appellants in the Second Appeal No. 1145 of 2006, had
contended that since the plaintiffs had claimed the title to the suit properties based on
Exhibit A-1 executed by Paramasivam Pillai in favour of their predecessor Arumugha
Thevar, the first issue that is to be decided would be as to what share Pramasivam Pillai had
in the suit properties. According to the defendants, Thiruvengadam Pillai had two wives and
six children including Pramasivam Pillai and that having regard to the admitted fact that
the first wife of Thiruvengadam Pillai pre-deceased him, there were 7 heirs left behind by
Thiruvengadam Pillai on his death and that Paramasivam Pillai had only 1/7 th share in the suit
properties. In support of the said fact pleaded by the defendants, both oral and
documentary evidence had been let in on behalf of the defendants.
60. It was further contended that the plaintiffs did not file any reply statement to the
written statement filed on behalf of the defendants, denying the averments made by them
that Thiruvengadam Pillai had two wives and that the second wife had five children.
Although the law may not require filing of a reply statement, there is no bar for filing such
a reply, especially, when a specific claim had been made by the defendants in their written
statement. The plaintiffs had not let in any evidence to contradict the claims made by the
defendants with regard to the second wife of Thiruvengadam Pillai and her children.
61. It was also contended on behalf of the defendants that P.W.1, who is the son of
Arumugha Thevar, had stated during the chief-examination that the first wife of
Thiruvengadam Pillai had pre- deceased him. During the corss-examination, P.W.1 had
stated that he was not aware of the fact that Thiruvengadam Pillai had two wives. The
statement made by all the plaintiffs’ witnesses would go to show that there was no denial
with regard to the fact that Thiruvengadam Pillai had a second wife and that he had five
children through her. On the contrary, D.W.1, who had been examined on behalf of the
defendants, had specifically stated that Thiruvengadam Pillai had two wives and that he had
five children through her and from whom the defendants’ predecessor had purchased the suit
properties. D.W.1 had also spoken about the earlier suit in O.S.No. 155 of 1974, stating that
the properties covered by the said suit is the suit schedule property in O.S.No. 572 of
1996. D.W.2 had also spoken about the second wife of Thiruvengadam Pillai and that J.E.S.
Thomas had purchased the suit properties from the legal heirs of Thiruvengadam Pillai.
D.W.3, who had been examined on behalf of the defendants, had also reiterated the same
facts. Further, there has been no proper and sufficient crosss-examination to discredit the
evidence let in on behalf of the defendants regarding the second wife of Thiruvengadam
Pillai and his children born through her and also with regard to the identity of the suit
properties.
62. Therefore, in the light of the positive evidence tendered by the defendants and
supported by the judgments rendered in the earlier proceedings relating to the suit
properties, the findings of the trial Court that Thiruvengadam Pillai had two wives would
have to be sustained. The contention of the plaintiffs that none of the witnesses examined
on behalf of the defendants were family members of Thiruvengadam Pillai is baseless in
view of the fact that there has been no cross-examination of the defendants’ witnesses in
relation to the said issue.
63. With regard to the submissions made on behalf of the plaintiffs that the
judgments in the earlier suits are not binding, since the plaintiffs and their predecessors-in-
title were not plaintiffs and their proceedings, in view of Sections 41 to 43 of the Indian
Evidence Act, 1872, it has been contended on behalf of the defendants that the suits in
O.S. No.155 of 1974 and O.S. No. 12 of 1989, were filed by the first and second defendants,
respectively, claiming partition in respect of the suit properties, on the basis of their
purchase of the said properties from J.E.S. Thomas, who had purchased the properties from
the second wife and the children of Thiruvengadam Pillai. Since the first and second
defendants were parties to the said proceedings and since they had let in evidence as to their
claims made in the said proceedings and since the properties in issue in the said suit are also
the properties in question in the suit O.S. No. 572 of 1996, the releifs granted in the said
proceedings by way of judgment therein are admissible as relevant facts.
64. It is not the contention of the defendants that the said judgment would constitute
res judicata or that it could be taken as conclusive evidence. They have been referred to only
as corroborative materials to support the evidence let in by the defendants to sustain their
claims. It is only when both the plaintiffs and the defendants were not parties in the earlier
proceedings, it can be said that the earlier proceedings cannot be relied upon as evidence.
Even otherwise, the Court can look into the earlier judgments for the purpose of
ascertaining certain aspects with regard to the parties and the properties covered under the
earlier proceedings and with regard to the relief granted, in view of the decision of the
Supreme Court in State of Bihar v. Radhakrishna Singh and others, AIR 1983 SC 684.
65. With regard to the contention of the plaintiffs relating to the missing last page of
Exhibit B-17, it is stated on behalf of the defendants that it is for the plaintiffs to establish
their claims with regard to the title in the entirety of the suit property. Since the plaintiffs
had failed to establish their claims on account of the fact that Paramasivam Pillai had only
1/7th share in the suit properties, the suit filed by the plaintiffs in O.S.No. 572 of 1996, must
fail.
 66. It has been contended on behalf of the defendants in the suit O.S.No. 572 of 1996
and the appellants in the second appeals that they have established their title in the suit
properties through Exhibit B-17. The judgments in the earlier proceedings, being in favour of
the first and second defendants, would establish the claims put forward by them that J.E.S.
Thomas had purchased the properties from the second wife and children of Thiruvengadam
Pillai. Since there has never been a dispute with regard to the identity of the suit properties
during the proceedings both before the trial Court as well as before the lower Appellate
Court, it is not open to the plaintiffs to advance a new argument at this stage as to the identity
of the properties in question.
67. It is the contention of the defendants that the document Exhibit A-2 cannot be
relied upon to prove the title of the plaintiffs as it is an unstamped and unregistered
document. It cannot be said that the admissions of P.W.1 relating to the existence of the
second wife of Thiruvengadam Pillai cannot be said to be a mere slip answer, since they
have been made consciously and deliberately and as a matter of fact.
68. Therefore, it has been pleaded on behalf of the defendants in the suit, who are the
appellants in the second appeals that having regard to the facts and circumstances of the case,
the judgment and decree of the lower Appellate Court deserves to be set aside as it had
proceeded on a misconception of the law, misreading of the evidence and by ignoring the
relevant evidence, besides referring to and relying upon irrelevant materials.
69. On the other hand the learned counsel appearing on behalf of the plaintiffs, who
are the respondents in the second appeals, while reiterating the facts, has submitted that the
suit properties were originally inam lands situated in Vijayaraghava Mudaliar Chattram
Village. Thiruvengadam Pillai was an accountant of Inamdar Mudaliar. Inamdar gave the
suit properties by way of Maaniam (Gift) to Thiruvengadam Pillai. Thus, Thiruvengadam
Pillai became the owner of the suit properties. Arumuga Thevar, the father of the
plaintiffs, was in actual possession and enjoyment of the suit properties as a tenant and he
was paying pattam to Thiruvengadam Pillai during his life time. Thiruvengadam Pillai had
died, on 28.9.1959. Thereafter, Arumuga Thevar, was paying pattam to Paramasivam Pillai,
son of Thiruvengadam Pillai. Patta in respect of the suit properties was exclusively in the
name of Paramasivam Pillai. Paramasivam Pillai had sold the suit properties to Arumuga
Thevar under a registered sale deed, dated 7.7.1961. A registered copy of the sale deed has
been marked by the defendants as Exhibit B-13. Therefore, from 7.7.1961, Arumuga Thevar
became the absolute owner of the suit properties. He had sold 17 cents out of the land
purchased under Exhibit A-1 to one Madasamy by a registered sale deed, dated 23.7.1964.
70. It has been further contended on behalf of the plaintiffs that there was a family
arrangement amongst the family members of Arumuga Thevar. In the said family
arrangement, Arumugha Thevar was shown as the first party and his wife and children were
shown as the second party. The suit properties were allotted to the second party i.e., the two
wives and children of Arumuga Thevar. The other properties of the family were allotted to
the share of the first party i.e., Arumuga Thevar. The said family arrangement was
subsequently reduced into writing for the purpose of evidencing the past event of the division
of the properties and with regard to their status amongst the family members of Arumuga
Thevar by a deed, dated 14.3.1966, marked as Exhibit A-2. Since the said document, Exhibit
A-2 is only the recording of the divisions of the properties made prior to the deed, it need not
be stamped or registered, as held by a Division Bench of this Court, in A.C. Lakshmipathy
and another v. A.M. Chakrapani Reddiar and Five others, 2001 (1) CTC 112. After the
family arrangement, the wives and children of Arumuga Thevar are in possession and
enjoyment of the suit properties as joint owners. The parties are not deriving title for the first
time under the deed marked as Exhibit A-2. Since Arumuga Thevar had died, his legal
heirs are jointly entitled to the suit properties by inheritance and thus, they have become
joint owners, de hors Exhibit A-2. Arumuga Thevar had died in the year 1970, prior to
the filing of the suit. Therefore, the plaintiffs are entitled to prefer the suit for declaration and
permanent injunction, even if Exhibit A-2 is held to be invalid in the eye of law.
71. It has also been contended on behalf of the plaintiffs that the suit properties were
originally Inam lands and therefore, the proceedings were taken by the Settlement Tahsildar,
Kovilpatti, under the provisions of the Act 26 of 1963. No notice had been issued to the
plaintiffs before issuing of Patta to the first and second defendants in the suit. When
objections were called for, with regard to the issuing of Patta in the year 1972, the plaintiffs
had participated in the enquiry. The Village Karnam had been examined during the enquiry.
72. After a detailed enquiry was conducted, the Settlement Tahsildar issued patta in
respect of the suit properties in favour of the plaintiffs by his order, dated 8.1.1973, marked
as Exhibit A-4. Thereafter, the plaintiffs’ names were entered in the ‘A’ Register. There has
been no appeal against the order of the Settlement Tahsildar, Kovilpatti, dated 8.1.1973.
Therefore, the Patta issued in favour of the plaintiffs in respect of the suit properties had
become final. Thereafter, the defendants had tried to get patta by effecting sub-division of the
suit properties. The sub-division proceedings and issuing of patta in favour of the defendants
by the concerned authorities were done without any notice to the plaintiffs and without giving
them any opportunity of raising objections. Therefore, the plaintiffs had preferred an appeal
before the Revenue Divisional Officer, Tirunelveli. Initially, an order of stay of the
proceedings was granted and finally the appeal was allowed. The sub-divisions made in the
patta in favour of the defendants were cancelled.
73. The relevant documents were marked as Exhibits A-6, A-7, A-11 and A-18 to A-
20. The plaintiffs had marked Exhibits A-8, A-9 and A-12, which were kist receipts
in relation to the suit properties. Thus, the plaintiffs had sufficiently proved their title
and possession.
74. It has been further stated that after framing the issues, the trial Court had come to
the conclusion that the suit was not bad in law for non-joinder of necessary parties. However,
the trial Court had decided the issues Nos. 3 and 4 against the plaintiffs. While doing so, the
trial Court had upheld the validity of Exhibit B-14, which is the release deed executed in
favour of Ayya Subramania Mudaliar, by accepting the contentions of the first and second
defendants. However, the trial Court had not held Exhibit A-2 to be invalid. With regard
to the issue relating to Exhibit B-17, the trial Court had held that the schedule in the said
Exhibit has been explained under Exhibits B-1 to B-3 and the trial Court had also held that
the cancellation of sub-divisions and the issuing of Patta had not been given due weightage
on the ground that the same had not been effected in the village accounts.
75. The trial Court after coming to the findings as stated above, had dismissed the suit.
In the appeal filed by the plaintiffs, the lower Appellate Court had held that Exhibit A-2,
which is the family arrangement, need not be registered as it relates to the recording of a
past event. The lower Appellate Court had also held that Exhibits B-4 to B-12 are not binding
upon the plaintiffs. With regard to Exhibit B-17, the lower Appellate Court had reversed
the findings of the trial Court by giving valid reasons.
76. Based on the rival contentions put forth by the learned counsels appearing on
behalf of the parties concerned, the points arising for consideration in the present second
appeals are as follows:
 (i) Whether Paramasivam Pillai had only 1/7 th share of the suit properties?
(ii) Whether the sale deed Exhibit B-17, executed by Arumuga Thevar and his children
is valid in law?
(iii) Whether Exhibit A-2, the family arrangement, is admissible in evidence, even
though it is unstamped and unregistered?
(iv) Whether Arunachalathammal and her children were entitled to 6/7 th share of the
properties of Arumuga Thevar?
77. The learned counsel appearing on behalf of the plaintiffs has contended that it is an
admitted fact that Paramasivam Pillai is the son of Thiruvengadam Pillai. Inamdhar patta,
Exhibit A-5 stood in the name of Paramasivam Pillai. Paramasivam Pillai had executed the
sale deed under Exhibit A-1 to Arumugha Thevar, the father of the plaintiffs 1 to 7.
Paramasivam Pillai was the only legal heir of Thiruvengadam Pillai and therefore, he was
entitled to alienate the property in its entirety. The existence of Exhibit A-1, which is the sale
deed, executed by Paramasivam Pillai in favour of Arumugha Thevar, has not been denied by
the defendants. Hence, Exhibit A-1 stands admitted and proved.
78. In respect of the share in the suit property, the defendants had pleaded that
Arunachalathammal is the second wife of Thiruvengadam Pillai and the children born to her
were entitled to 6/7th share of the suit property. In such a case it is for the defendants to prove
that Arunachalathammal was the second wife of Thiruvengadam Pillai by examining
witnesses from amongst the members of the family of Thiruvengadam Pillai. Whereas, the
defendants have examined four witnesses on their behalf and none of them belonged to the
family of Thiruvengadam Pillai or of Arunach-alathammal. All the four witnesses examined
on behalf of the defendants are not competent to depose with regard to the said issue.
Even if it is assumed, without admitting, that Arunachal-athammal was the second wife of
Thiruvengadam Pillai, since the properties in question are the properties of a Hindu
Undivided Family, Paramasivam Pillai, being the elder member of the family and the
kartha of the Hindu Undivided Family, was entitled to alienate the suit properties in its
entirety. Therefore, Exhibit A-1 ought to be held to be valid in the eye of law.
79. It has been further contended on behalf of the plaintiffs that they are not claiming
the title under Exhibit A-2, since Exhibit A-2 is the deed showing the past transaction of
separate enjoyment of the suit properties. It need not be registered, as held by this Court in its
earlier decisions reported in 1999 (2) LW 98 and 2001 (1) CTC 112. Further, the necessity of
producing Exhibit A-2 before the Settlement Officer did not arise, since the plaintiffs
had claimed the title through Exhibit A-1 and not under Exhibit A-2. The recitals in Exhibit
A-2 will clearly establish that the document was executed only as an evidence of a past
transaction.
80. It has been further stated that a document has to be read as a whole together with
the intention of the executants, as held in Lalji Rao and others v. Jayarama Rao alias
Jawaharlal Rao and another, 2004 (3) MLJ 421 and in F.M. Devaru Ganapati Bhat v.
Prabhakar Ganapathi Bhat, 2004 (1) MLJ 180 (SC). With regard to Exhibits A-4 and A-5,
which are pattas, it has been stated that the plaintiffs are not claiming title through them. It is
only to show that the plaintiffs are in possession and enjoyment of the suit properties. They
have been marked as Exhibits. Exhibit A-5 is the Inamdar patta, which is normally
considered to be a title deed and it is different from the patta granted by the Revenue
Authorities, as held in State of Madras v. B. Reddiar, AIR 1973 Mad. 14. Exhibit A-5, which
is the inamdar patta, stood in the name of Paramasivam Pillai with regard to the entire
property. It shows that Paramasivam Pillai was the absolute owner of the property and
therefore, it has been taken to have evidentiary value to prove the title as held in Kaliyuga
Kannan v. The Tahsildar, Land Survey and Settlement and others, 2000 (1) TLNJ 102, and
with regard to the possession of the property, as held in Lakshmana Gounder v. The Special
Deputy Collector (LA), Salem Steel Plant, Salem and others, 2003 (1) MLJ 21. It has also
been held by this Court in Gopala Chettiar v. Arasappa Pillai, AIR 1940 Mad. 523, that
patta is a strong prima facie evidence of title.
81. It was contended on behalf of the plaintiffs that Exhibit B-17 did not contain the
words to show that Arunachalathammal had executed the sale deed with regard to her 6/7 th
share in the suit properties. There is no reference to Paramasivam Pillai, the elder son of
Thiruvengadam Pillai. The vendor of the documents, namely, Exhibits B-17 and B-1 have not
been examined to prove the title of the documents. When the vendor of the document is not
examined, it becomes inadmissible in evidence as held in Mangathayammal v. Ruthirasami
Naicker, Vol. 89 LW 405. Further, there is nothing shown on behalf of the defendants to
prove that Arunachalathammal was the second wife of Thiruvengadam Pillai. Neither the
vendors nor the attestors of the sale deeds, marked as Exhibits B-17 and B-1, have been
examined. Hence, they cannot be held to have been proved by the defendants, as held in K.
Ramanathan (Died) and others v. B.K.Nalini Jayanthi, 1996 (2) LW 658. The witnesses
examined on behalf of the defendants are all the subsequent purchasers and they cannot be
held to be competent witnesses to speak about the marriage of Arunachalathammal to
Thiruvengadam Pillai.
82. It was further contended on behalf of the plaintiffs that the presumption under
Section 90 of the Indian Evidence Act, 1872, cannot be made applicable to the documents,
namely, Exhibits B-17 and B-1, as they are not original documents as held in Patel Manilal
Chhanganlal v. The Municipal Corporation, Surat and others, AIR 1978 Guj. 193,
Shiolalsing Gannusing Rajput v. Shankar Motiram Nale, AIR 1984 Bom 19, Subudhi
Padhan v. Raghu Bhuvan, AIR 1962 Ori. 401, Dhirendra Singh and others v. Dhanai &
others, AIR 1983 All 216 and Gadey Venkata Ratnam (deceased) and others v. Gadey
Sitaramayya and others, AIR 1950 (1) MLJ 720. With regard to the missing of the last page
of the document, namely, Exhibit B-17, containing the schedule of the property, it has been
contended on behalf of the plaintiffs that the said document cannot be held to be relating to
the suit properties. It is the case of the defendants that the office of the Sub-Registrar, which
had given the certified copy of the said documents, had stated that the last page of the
document could not be given, as it was torn.
83. The learned counsel appearing for the plaintiffs has stated that Exhibit B-17 had
been produced before the District Munsif Court, Tirunelveli, in O.S.No. 155 of 1974 and the
same had been marked by the first defendant as Exhibit A-2. The judgment in the said suit
has also been marked in the suit O.S.No. 572 of 1996 as Exhibit B-4. When the defendants
had produced Exhibit B-17 in the earlier litigation, it was open to them to call for the said
document to be marked in the present suit or a certified copy could have been obtained
from the Court registry. There is no explanation as to why the document had not been called
for or the certified copy marked before the trial Court in O.S.No.572 of 1996. The
explanation given on behalf of the defendants that the document in the earlier litigation
would have been destroyed is not acceptable, since the second appeal filed against the earlier
litigation had ended only in the year 2002 and hence, the claims made by the defendants
cannot be held to be valid.
 84. Further, in Exhibit B-18 there is a specific recital stating that the registration copy
of Exhibit B-17 had been given to the vendee, namely, Sethuramachandra Thevar, the 21 st
defendant in the suit. In such circumstances, adverse inference has to be drawn against the
defendants, under Section 114 of the Indian Evidence Act, 1872, since Exhibit B-17 has not
been sufficiently proved and therefore, the case of the defendants cannot be sustained.
85. It has also been contended on behalf of the plaintiffs that when the defendants had
taken a specific plea that Arunacha-lathammal, as the second wife of Thiruvengadam Pillai,
had sold the suit properties to J.E.S. Thomas under Exhibit B-17 as she had 6/7 th share in the
suit properties, it is for the defendants to prove their claim by letting in the necessary
evidence. Since the defendants had failed to prove their positive claims, it cannot be held in
their favour as held in Edara Venkata Rao v. Edara Venkayya, AIR (30) 1943 Mad 38 (2).
The trial Court had held that the schedule in Exhibit B-17 had been explained under Exhibit
B-1. However, the lower Appellate Court had reversed the said finding, after a detailed
discussion.
86. With regard to the declaration made in the earlier suit in O.S.No. 155 of 1974, it
has been stated that it is not binding on the plaintiffs, since the plaintiffs and the vendor of
the plaintiffs were not parties to the earlier litigations. Further, the title of the first and second
defendants had not been decided on merits. Ayya Subramania Mudaliar, the first defendant in
O.S.No. 155 of 1974, had filed an appeal against the judgment passed in O.S.No. 155 of 1974
in A.S.No.29 of 1980, before the Sub-Court, Tirunelveli. The appeal had been partly allowed
with regard to the title of Thiruvengadam Pillai. While the title of Thiruvengadam Pillai had
been confirmed, the title of J.E.S. Thomas and the first defendant had been set aside and the
appeal was remanded to the trial Court.
87. The said judgment in A.S.No. 29 of 1980 had been marked as Exhibit B-6. After
the matter was remanded, Ayya Subramania Mudaliar had not appeared in the suit and
therefore, an ex parte preliminary decree had been passed. On the basis of the ex parte
preliminary decree a final decree had been passed in the said suit. Thus, the title of the first
and second defendants have not been decided on merits. Therefore, the judgment and
decree passed in O.S.No. 155 of 1974 is not binding on the plaintiffs.
88. With regard to Exhibits B-4 to B-12 in respect of the marriage between
Arunachalathammal and Thiruvengadam Pillai, it cannot be said to have been proved.
Further, it cannot be held to be binding on the plaintiffs, since the plaintiffs are not parties in
those litigations. Therefore, the defendants have to independently prove the marriage of
Arunachalathammal to Thiruvengadam Pillai. Since Exhibits B-4 to B-12 are not admissible
in evidence except for the limited purpose of proving certain aspects to show as to who the
parties were and with regard to the subject-matter of the suit relating to which the decree
had been passed as reported in State of Bihar v. Sri Radha Krishna Singh & others, Vol. 96
LW 93 and Tripurana Seethapathi Rao Dora v. Rokkam Venkanna Dora and others, AIR
1922 Mad 71. Since the defendants had not examined any of the family members as a witness
to prove the marriage of Arunachalathammal and Thiruvengadam Pillai and since the
witnesses examined on behalf of the defendants were not competent to speak about the
marriage, the defendants have filed to prove their title.
89. Exhibit B-14, which is the release deed, had been marked as Exhibit B-3 in the
earlier litigation in the appeal in A.S.No.29 of 1980, on the file of the Sub-Court, Tirunelveli,
wherein K. Ayya Subramania Mudaliar had claimed the title against the first and second
defendants on the basis of the release deed. The defendants had taken a plea that the release
deed was invalid and had succeeded on the said plea and had obtained an order. However, in
O.S.No.572 of 1996, the defendants had relied upon the same release deed to state that the
plaintiffs had no right since their father Arumugha Thevar had executed the release deed in
favour of K. Ayya Subramania Mudaliar. In such circumstances, the defendants are estopped
as they cannot be permitted to approbate and reprobate, by taking contrary stand in different
proceedings, as held in R. Murali and others v. Kanyaka P. Devasthanam and Charities and
others, 2005 (4) MLJ 52 (SC) and P. Saraswathi Ammal v. Lakshmi Ammal alias Lakshmi
Kantam, AIR 1978 Mad 361.
90. It has also been contended on behalf of the plaintiffs that if the defendants are
relying on the release deed then it could be taken that they are accepting the title of
Arumugha Thevar in respect of the entire suit property. Mere attestation by the first plaintiff,
without knowing the contents of the deed, will not amount to estoppel, as held in
Kannappan v. Pargunan and 9 others, 2000 (II) CTC 219 and attestation would not imply
that the attestor had knowledge of the contents of the document or that the attestor had
accepted the contents of such documents, unless it is pleaded and proved, as held in K.A.
Selvanachi and another v. Dr. S.R. Sekar and another, 2003 (1) CTC 745. Even if it could be
assumed that the plaintiff’s father had executed a release deed, it cannot be held to be valid as
the properties were being enjoyed by the plaintiffs. Since the properties were already in the
enjoyment of the plaintiffs and their father, separately, as an evidence of the same, the family
arrangement, as found in Exhibit A-2, had been made, on 14.3.1966.
91. The learned counsel appearing on behalf of the plaintiffs had submitted that there
is no necessity on the part of the plaintiffs to file a reply statement to the written statement
filed by the defendants. The law does not compel or require the plaintiffs to file a reply
statement as held in Gita alias Gita Ravi v. Mary Janet James alias M.J. James and others,
1995 (2) LW 831 and Veerasekara Varmarayar v. Amirthavalliammal and others, Vol. 87
LW 397. In the evidence let in on behalf of the plaintiffs, the second marriage of
Thiruvengadam Pillai with Arunachalathammal has been categorically denied in so many
places in the cross-examination. It cannot be stated that the plaintiffs have admitted the
factum of marriage by a single sentence recorded by way of evidence from the statement of
P.W.1. The entire evidence has to be read as a whole and the right inference drawn.
Therefore, a single sentence cannot be taken in isolation to draw any valid inference as
held in E.I. Velayutham v. Hajeera, 2003 (2) MLJ 490 and Boramma v. Krishna Gowda and
others, 2000 (3) MLJ 199 (SC). It is a settled principle of law that the Court must see as to
how consistent the testimony of the witness is and as to how and what answers fit in with the
rest of the evidence and the probabilities of the case.
92. It has been contended on behalf of the plaintiffs that it is clear that the defendants
had not produced any document to show that Arunachalathammal is the second wife of
Thiruvengadam Pillai. It has also been stated on behalf of the plaintiffs that the plaintiffs’
title through Exhibit A-1 is not denied by the defendants. The pleadings in respect of the
title are also not denied. Hence, there is a presumption in law that Exhibit A-1 and the
pleadings of the plaintiffs have been admitted by the defendants. Exhibits A-3 to
A-20 had been marked on behalf of the plaintiffs to prove their possession of the suit
properties. In such circumstances, the claims of the petitions stand proved. Hence, the second
appeals ought to be dismissed.
93. From the above submissions, it is seen that one of the main contentions raised in
the above Second Appeals is with regard to the question as to whether Paramasivam Pillai,
who is the executor of Exhibit A-1, had the absolute right over the entirety of the properties
in question or that he had only 1/7th share in the said property, as it is contended on behalf of
the defendants that Thiruvengadam Pillai, the father of Paramasivam Pillai, had a second
wife by name Arunachalathammal, through whom he had five children.
94. With regard to the issue as to whether Exhibit A-2, which is said to be a family
arrangement, ought to have been registered for being admitted as evidence, the lower
Appellate Court had come to the conclusion that it is admissible in evidence, since it is a
document recording an earlier event of separate possession and enjoyment of the separate
shares of the members of the family. Only if the said document was creating an interest in the
property in question for the first time, it has to be stamped and registered to be admissible
in evidence.
95. On a reading of Exhibit A-2, it is clear from its recitals that the said document had
been made only as an evidence of the past transaction. Exhibit A-2 reads as follows:—

“
 96. While reading Exhibit A-2 as a whole, it is clear that it is a deed of family
arrangement showing the past transaction of separate enjoyment of the properties amongst
the parties shown therein. When the document is not creating any new right in the properties
involved and in the transaction dealt with by the document it need not be registered, as held
by this Court in A.C. Lakshmipathy and another v. A.M. Chakrapani Reddiar and five others,
2001 (1) CTC 112. It is clear that a document in the nature of a memorandum evidencing a
family arrangement already entered into and which had been prepared as a record of what
had been agreed upon in order that there are no hazy notions in future need not be stamped or
registered. The non-production of the document marked as Exhibit A-2 before the Settlement
Officer cannot give rise to any serious doubt with regard to its validity or with regard to its
evidential value. Thus, the lower Appellate Court had come to the right conclusion with
regard to Exhibit A-2.
97. Admittedly, Exhibit A-1 is the registered sale deed, dated 07.07.1961, by which
Paramasivam Pillai, son of Thiruvengadam Pillai, had sold the suit properties to Arumuga
Thevar. The existence of the said document is not disputed by the defendants. The only
question that would arise with regard to the said document is as to whether Paramasivam
Pillai had sold the entire suit properties to Arumuga Thevar through the said document. The
defendants had contended that Paramsivam Pillai could have sold only 1/7 th share in the
properties of Thiruvengadam Pillai, since 6/7th share in the suit properties were with
Arunachalathammal, being the second wife of Thiruvengadam Pillai, and her three sons and
two daughters.
98. According to the plaintiffs, Thiruvengadam Pillai had only one wife and
Paramasivam Pillai, being the only legal heir of Thiruvengadam Pillai at the time of his
death, was entitled to the entire suit properties. Therefore, Arumuga Thevar became the
absolute owner of the suit properties on and from 07.07.1961, which is the date of the sale
deed marked as Exhibit A-1.
99. In such circumstances, it has been contended that the defendants cannot claim
any share in the suit properties which had belonged to Thiruvengadam Pillai. The claim of
the defendants that Thiruvengadam Pillai had a second wife by name Arunachalathammal
through whom he had three sons and two daughters and that they had together sold the
properties to J.E.S. Thomas, from whom the defendants had bought the properties, cannot be
sustained. The claim of the defendants that Arunachalathammal and her children had 6/7 th
share of the properties that had belonged to Thiruvengadam Pillai is not correct, since the
defendants could not prove by sufficient evidence that Thiruvengadam Pillai had a second
wife by name Arunachalathammal.
100. On the other hand, the contentions of the plaintiffs can be held to be valid, since
no sufficient proof has been shown to sustain the claims of the defendants to prove that
Arunachalathammal was the second wife of Thiruvengadam Pillai and no member of the
family of Thiruvengadam Pillai or of Arunachalathammal was examined as a witness in this
regard.
 101. It has also been found by the lower Appellate Court that Exhibits B-4 to B-12 are
not binding upon the plaintiffs, since the plaintiffs had not been parties to the earlier
proceedings. Therefore, Exhibit B-4 relating to the earlier proceedings is not admissible in
evidence except for certain limited purposes as held in 1996 LW 93, wherein, it was held that
the cumulative effect of the various decisions of the Courts of Law is to the effect that
under the Indian Evidence Act, 1872, a judgment which is not inter parties is
inadmissible in evidence except for the limited purpose of proving as to who the parties were
and as to what was the decree passed and the properties which were the subject-matter of the
suit. Thus, the lower Appellate Court had come to the right conclusion holding that the
documents relating to certain earlier proceedings were not binding on the plaintiffs. With
regard to Exhibit B-14, filed on behalf of the defendants, it has been stated that the plaintiff’s
father Arumuga Thevar, had executed the release deed in favour of Ayya Subramania
Mudaliar and therefore, the plaintiffs would have no right over the suit property, especially,
in view of the fact that the first plaintiff was one of the attesting witnesses to the document
and therefore, the plaintiffs are estopped from claiming title over the suit properties.
However, it is seen that the defendants had taken a plea in the earlier proceedings, in
A.S.No.29 of 1980, on the file of the Sub-Court, Tirunelveli, that the release deed was
invalid. It is not open to the defendants to rely on the said document to deny the lawful title
of the plaintiffs in the present suit. The defendants cannot approbate and reprobate before
the Court of Law, as held in R. Murali and others v. Kanyaka P. Devasthanam and Charities
and others, 2005 (4) MLJ 52 (SC). Though pattas cannot be taken as proof of title, the
Inamdar patta issued in favour of the plaintiffs, marked as Exhibit A-5 and the patta in
Exhibit A-4 can be taken as evidence to prove possession. Exhibit A-5, Inamdar patta, stood
in the name of Paramasivam Pillai in respect of the entire suit properties. It shows that
Paramasivam Pillai was the absolute owner of the suit properties.
102. A contention had been raised on behalf of the defendants that Exhibit B-17 is a
document which is more than 30 years old and hence, presumption can be drawn with regard
to its validity, under Section 90 of the Indian Evidence Act, 1872, and therefore, it need not
be proved. However, it has been found that Exhibit B-17 did not state that
Arunachalathammal had executed 6/7th share in the suit properties. Further, there is no
averment in the said sale deed that Thiruvengadam Pillai had a son by name Paramasivam
Pillai. There is no reference to the fact that Arunachalathammal was the second wife of
Thiruvengadam Pillai. Further, the vendor of the sale deeds, marked as Exhibits B-17 and
Exhibit B-1, have not been examined to prove the title of the documents and therefore, they
became inadmissible in evidence.
103. The findings of the lower Appellate Court relating to Exhibit A-2, dated
14.03.1966, filed on behalf of the plaintiffs, said to be a deed of gamily arrangement, relating
to the suit properties, is found to be correct. From the recitals of the said document, it is seen
that it is a recording of a past transaction of separate enjoyment by which the suit properties
of Thiruvengadam Pillai was under separate enjoyment amongst the persons who were
parties to the said family arrangement. In such a case, it is settled law that the document need
not be registered to be of evidential value. The plaintiffs had sufficiently shown proof of
possession, as held by the lower Appellate Court, by way of the kist receipts in Exhibits A-8,
A-9, A-12, A-13, A-14 and A-17. The lower Appellate Court has found that by Exhibit A-4,
the plaintiffs have been granted Ryotwari Patta, under the Tamil Nadu Inam Estates
(Abolition and Conversion into Ryotwari) Act, 1963. The said document has also been taken
into consideration to establish the title and possession of the plaintiffs in the suit properties.
The lower Appellate Court had also come to the conclusion that the plaintiffs were not parties
to the suit in O.S.No. 155 of 1974 and A.S.No.29 of 1980 and Second Appeal 1572 of 1988
and also to the suit in O.S.No.12 of 1989 and A.S.No. 41 of 1996, filed by Pency Grace and
Mercy Dharamaraj. Therefore, it has been held that the judgments passed by the concerned
Courts in those proceedings are not binding on the plaintiffs.
104. The lower Appellate Court had also come to the conclusion that the release deed
in Exhibit A-14, dated 07.07.1968, cannot be accepted due to the existence of the deed of
family arrangement, in Exhibit A-2, dated 14.03.1966. It has also been held that the
defendants had not shown sufficient proof to substantiate their claims with regard to
possession. On the other hand, the plaintiffs have shown that they have been in possession of
the suit properties by way of kist receipts and the patta proceedings.
105. The contentions raised on behalf of the defendants that Exhibit A-1 cannot be
taken to convey the entire suit properties cannot be accepted, especially, in view of the fact
that the defendants have not shown by way of sufficient evidence that Thiruvengadam Pillai
had a second wife by name Arunachalathammal and that he had three sons and two daughters
through her.
106. On the other hand, the claim made by the defendants that Arunachalathammal and
her children had sold the entire suit properties to J.E.S. Thomas does not stand proved as
neither the vendors nor the attestors of the sale deed concerned have been examined as
witnesses in support of the said documents. Further, there has been no recitals in those sale
deeds referring to Paramasivam Pillai son of Thiruvengadam Pillai, even though the said fact
has not been disputed by the defendants. Even according to the defendants, Paramasivam
Pillai was entitled to 1/7 th share of the properties belonging to Thiruvengadam Pillai. Further,
no acceptable explanation has been given by the defendants as to why the last page of Exhibit
B-17 was missing and as to why copies of the said document could not be called for from the
Court in which it had been filed earlier. There is also no explanation from the defendants as
to why the defendants who were said to be in possession of the copies of the documents
could not file the same during the trial of the present case. Further, the defendants have taken
inconsistent stand with regard to Exhibit B-14, which is the release deed, marked as Exhibit
B-3 in the earlier litigation. Having taken a stand in the earlier litigations that the release
deed was invalid, they cannot rely upon the same in their favour in the present litigation.
107. Therefore, this Court is of the considered view that every document has to be read
as a whole to get at the right meaning which it attempts to convey and the oral evidence let in
by the witnesses have to be given a meaning in the context in which the statements are made.
In such view of the matter, the allegations made by the defendants, with regard to
inconsistency in the written document Exhibit A-2 and in the oral evidence of P.W.1, cannot
weaken the case of the plaintiffs. Exhibit A-4, which is a patta issued in favour of plaintiffs
and Exhibit A-5 which is the Inamdar Patta can be sufficient evidence to show the
possession of the plaintiffs in the suit properties, as held by the lower Appellate Court. The
claim of the defendants that Exhibit B-17 is a document more than 30 years old and hence,
presumption is to be drawn in its favour, under Section 19 of the Indian Evidence Act, 1872,
would be applicable only to original documents. Therefore, such a presumption cannot be
claimed by the defendants with regard to the copies of the said document filed in their favour.
108. For the reasons stated above, this Court finds that the contentions raised on behalf
of the appellants in the present second appeals cannot be accepted and therefore, the second
appeals S.A.(MD) Nos. 286 of 2005 and 1145 of 2006 are dismissed. No costs.
Consequently, connected C.M.P. and M.Ps. are closed.
Appeals dismissed.

[2007 (2) TNCJ 753 (Mad) (MB)]

MADRAS HIGH COURT
(MADURAI-BENCH)
BEFORE:
K. VEERARAGHAVAN, J.
SWAMI MUKTHANANDA AND OTHERS ...Petitioners
Versus
SRI RAMAKRISHNA THAPOVANAM REP. BY ITS
SECRETARY SADANANDA THIRUPPARAITHURAI,
TIRUCHY DISTRICT. ...Respondent.
[C.R.P.(PD) (MD) No. 411 of 2007 and M.P. (MD) No. 1 of 2007, decided on 28 th June,
2007]
Civil Procedure Code, 1908—Sections 47, 115 and Order XXI, Rules 97, 98 and
101—Execution of decree—Objection by petitioner holding an independent right—
Petitioners have no independent rights to claim over property—Whatever right they
are having it emanates only from first defendant—Once decree is passed against
defendant, alleged rights of petitioner merges with defendant—Further they
participated in entire trial proceedings and engaged one counsel and adopted written
statement filed by defendant—Hence for avoiding decree they cannot now turn around
and say that they have independent rights—No case of material irregu larity or abuse
of process of law or even perversity shown so as to interfere with order in revision—
Thus revision dismissed.
That the petitioners have no independent rights to claim over the property and
whatever rights they are having, it emanates only from the first defendant and once a decree
is passed against the first defendant the alleged rights of the petitioners merges with the first
defendant and they cannot claim any independent right so as to call them as objectors
especially in the light of the fact that with wide open eyes, they participated, in the entire trial
proceedings and engaged one counsel and adopted the written statement filed by the first
defendant and for avoiding the decree, they cannot now turn around and say that they have
independent rights. They are residing there and therefore a separate adjudication has to be
conducted under Order XXI, Rule 35, Order XXI, Rule 97 etc., is also not acceptable to this
Court. The word “reside” gets its meaning depending upon the context in which it is used as a
general meaning cannot be applicable on the facts of the present case.
This Court is not in agreement with the submissions put forth by the learned counsel
for the petitioner and on the contrary, the submissions put forth by the learned counsel for the
respondent is acceptable on legally and hence this Court is not inclined to interfere with the
order passed by the lower Court under Section 115 of C.P.C.
(Paras 16 and 17)
Case law.—AIR 1998 SC 743; AIR 1995 SC 358; 2002 (3) CTC 248; 2005 (1) CTC
76; AIR 1995 Pat. 550; 2004 (2) CTC 168; Air 1968 Cal 547; AIR 1953 Cal 155.
 Counsel.—Mr. K. Srinivasan for M/s. G. Prabhurajadurai, for the petitioners; M/s. A.
Sankarasubramanian, for the respondent.
JUDGMENT
K. VEERARAGHAVAN, J.—Heard the learned counsel for the petitioners as well as
respondent. The present civil revision petition is preferred by the petitioner against an order
passed in E.A.No.4 of 2007 in E.P.No. 63 of 2005 in O.S.No. 1254 of 1994 on the file of the
District Court, Karur by order dated 27.2.2007.
2. The learned counsel for the petitioners submitted that the petitioners were residing at
Sri Ramakrishna Ashramam, Pasupa-thipalayam, Karur. Therefore aggrieved against the
order passed in E.A.No.4 of 2007 on the file of the District Judge, Karur by order dated
27.2.2007 and the present civil revision petition under Section 115 of C.P.C. is preferred.
3. The learned counsel for the petitioner submitted that the executing Court has failed
to pass an execution decree as per the terms of the decree itself rather it has travelled beyond
the scope of the decree and passed the impugned order. The learned counsel for the petitioner
further contended that the law is well settled with regard to the proposition that Executing
Court can only go by the decree and cannot go behind the decree. Therefore, the learned
counsel for the petitioner submitted that a suit was filed by the respondents Sri
Ramakrishna Thapovanam, a Registered Society against one Swami Athmananda and 15
others. The prayer sought in the suit was:—
(a) holding that the plaintiff is the absolute owner of the suit properties and
educational agency with respect to the suit institutions described in Schedule A
and the properties in Schedule B and for a consequential relief of possession and
directing the first defendant to hand over charge relating to the suit institutions
and properties described in Schedule A and B.
(b) directing the first defendant to render a true and proper accounts with regard to
the income from the suit properties for the last three years and till he actually
handed over charge.
(c) granting permanent injunction restraining the first defendant from interfering
with the right of the plaintiff to manage the suit institutions and properties
described in Schedule A and B or collecting any amounts for and on behalf of
the suit institutions either projecting himself as the founder, secretary or
correspondent or in any other capacity.
(d) granting such further or other reliefs as this Honourable Court may deem fit and
proper in the circumstances of the case and render justice.
4. The above suit was decreed in favour of the plaintiffs and Court has passed the
following order and decree:
(1) that it is hereby declared that the plaintiff is the absolute owner of the suit
properties and educational agency with respect to the suit institutions A and
B schedule properties;
(2) that the first defendant is directed to put the possession and to hand over
charge of the suit institutions and properties of A and B Schedule
properties within two months;
(3) that the first defendant is directed to render a true and proper accounts with
regard to the income from the suit properties for the past three years and till
he actually hands over the charge;
 (4) that the first defendant is hereby restrained from interfering with the right
of the plaintiff to manage the suit institutions and properties of A and B
schedule properties or collecting any amounts for and on behalf of the suit
institutions either projecting himself as the founder secretary or
correspondent or in any other capacity by means of permanent
injunction;
(5) and that there is no order with regard to costs (Defendant’s cost is Rs.
16,001.50)
5. The learned counsel for the petitioner submitted that the decree is only to direct the
first respondent to hand over the possession and handover the charge of the suit institutions
and properties A and B schedule properties within two months and therefore that decree may
not have any binding effect as far as the petitioners are concerned though they are defendants
5, 8, 9, 11 and 12.
6. The learned counsel was very much harp upon the word “Residing”, however, it has
been clearly stated that they are residing in the place. There is no reason to allege that they
are in possession so as to evict. In fact they never sought any independent relief in the suit
and they have got their own independent rights. The learned counsel for the petitioners
submitted that even in the plaint more than one place it has been stated that as they are
residing within the jurisdiction of the Court and the prayer is also only binding against the
first defendant and therefore the decree does not speak about their rights or rather silent. The
Executing Court cannot go behind the decree and order the execution against the petitioners
also. The learned counsel for the petitioners submitted that Order XXI, Rule 35, Order XXI,
Rule 97 and Order XXI, Rule 98 and Order XXI, Rule 101 on a conjoint reading would only
disclose that if there is no decree against any person, he cannot be added in the eviction
process especially when the decree is silent about that.
7. On the contrary, there should have been an adjudication and application has to be
received as an objector, which the executing Court failed to do and thereby committed
material irregularity. It was also contended by the learned counsel for the petitioner that since
delivery of possession, rendition of accounts and injunction is only against the first
defendant, there is no decree for possession passed against the petitioners. Execution petition
ought not to have proceeded further. According to the learned counsel for the petitioner in the
plaint there is no averment that they are the disciples of the first defendant. But it was
contended that the finding that the first defendant is only the agent of the plaintiff and he
cannot claim any independent rights over the suit properties which do not affect their rights
and in fact while passing the order the learned District Judge has found that the petitioners
were disciples of the first defendant and cannot claim any independent rights over the suit
properties. The finding was attacked by the learned counsel for the petitioner on the premise
that it is based on no evidence.
8. The learned counsel for the petitioner relied upon the judgment reported in—
(1) State of Maharashtra v. Mangilal Sharma, AIR 1998 SC 743.
(2) Bhanwar Lal v. Satyanarain and another, AIR 1995 SC 358.
(3) Government of Orissa v. M/s. Ashok Transport Agency and others, 2002
(3) CTC 248.
(4) Jaya Chandra Mohapatra v. Land Acquisition Officer, Rayagada, 2005 (1)
CTC 76.
 (5) Om Prakash, son of Shadi Ram v. Dev Raj, son of Sundar, AIR 1995 Pat.
350.
(6) M. Indirani and others v. Sri Saravana Finance, by its Manager/Partner
K.A. Soundararajan and others, 2004 (2) CTC 168.
(7) Umaprasad Pal and others v. Mriyunjay Pal and others, AIR 1968 Cal
547.
and submitted that Order XXI, Rule 97 makes it very clear that Order XXI, Rule 97 is
to be complied whenever there is an objector and in fact the learned counsel relied upon the
judgment in Indirani and others v. Sri Saravana Finance, by its Manager/Partner K.A.
Soundararajan and others, 2004 (2) CTC 168 to the proposition that even Section 47
application can be converted into an application under Order XXI, Rule 97 of C.P.C.
9. In short the learned counsel for the petitioners has submitted that in respect of the
petitioner being parties to the suit, when there is no relief claimed by them they have to be
considered as third parties and an objector petition would naturally lie and Executing Court
cannot brush aside such a valuable legal right provided by the Civil Procedure Code.
10. The learned counsel for the petitioners further contended that it has been
categorically stated in the plaint that they are all residing in different place and therefore their
case is to be viewed separately and even while passing the decree the decree is only
binding towards the first defendant and not against the petitioners. Therefore such decree
cannot be thrust upon for the execution proceedings so as to deny their rights.
11. Per contra, the learned counsel for the respondent submitted that these
petitioners are Swamys and they cannot reside like any other ordinary human beings and as
such their role is a divine role and such being the position interpreting the word
“residing” in a manner not acceptable to law is to be rejected by this Court. In fact the
learned counsel for the respondent submitted that it is not as if the petitioners and the first
defendant have conducted the trial separately. On the contrary, for both the first defendant
and these petitioners, there is only one counsel who conducted the case. The written
statement filed by the first defendant was adopted by these defendants and therefore they do
not have any independent rights to agitate, even at the time of the suit and trial proceedings.
12. The learned counsel for the respondent further submitted that it is a rudimentary
principle of law that these members of the institution cannot claim any independent rights at
all and it is a vexatious plea by the petitioners to cause hardships to the plaintiff. Even
presuming for a moment, but not conceding that they have any independent rights, it is
merged with the order and person residing does not mean that he has got the right of
injunction. The learned counsel for the respondent further submitted that the first
defendant is behind the entire episode and instigate these petitions to frustrate the decree or to
prevent the respondent/plaintiff from enjoying the fruits of the decree. The petitioners are
nothing but “proforma party” arrayed only for the effective adjudication of the matters. It
was further contended that Section 47 never contemplates some thing after decree but only
before decree. Section 47 contemplates only matters concerning before decree and not after
decree and therefore, it is again reiterated that the lower Court has only followed by the
decree and an order was passed in the execution proceedings only in accordance with the
decree. As far as Order XXI, Rule 97 is concerned it has to be read conjointly. In Order XXI,
Rule 99 the right is only given to decree holder and application without filing any documents
proving possession cannot be filed under Order XXI, Rule 97. Therefore, the learned counsel
further submitted, that whether a party to the proceedings before the trial Court can have any
right of objection to the execution proceedings and the learned counsel for the respondent
submitted such right is not contemplated under Order XXI, Rule 97. When the defendants are
bound by the decree, there is no need for the respondents to go for any obstructor
proceedings under Order XXI, Rule 97 and any by stretch of imagination the petitioners
can be construed as obstructors since they are not total strangers to the trial proceedings. In
fact against the police protection order no revision order was filed by the petitioners. The
petitioners wanted to have a second round of merry litigation at the detriment of the plaintiff
without any legal basis. The petitioners have chosen to file this present C.R.P. only to cause
serious prejudice and hardship to the respondents.
13. The learned counsel further submitted that even the “res judicata” principle will be
applicable to “proforma party” as ruled by various Courts of justice. The learned counsel for
the respondent further relied upon the judgment reported in which, the Full Bench was
pleased to rely upon the Privy Council judgment and ruled that Section 11 of C.P.C. declares
that judgment and decrees bind only the parties and privys then the section makes any
distinction between a “formal” or “informal party” or between the party against whom
relief is claimed and against whom no relief is claimed. It was further ruled that proforma
defendant was joined as a party in the suit because his presence is necessary, in order to
enable the Court for effectively and completely to adjudicate the matters in controversy
between the parties. He does not enjoy any special rights or privilege which are not available
to others and he is bound by the decision of the Court and other parties to the litigation.
14. If therefore any such person had a right to be heard or to control the proceedings,
he is bound by the “doctrine of res judicata” even though he was joined merely as a “formal
party”.
15. The learned counsel further relied upon the fact that Section 47, Order XXI,
Rules 100 and 103 contemplates only third party i.e., one who is not a party to the suit
whereas a proforma defendant cannot be suited under Order XXI, Rule 100 of C.P.C. It was
further relied upon by the learned counsel for the respondent, a case law reported in Monjur
Mondal v. Anammad Mondal and others, AIR 1953 Cal 155, to the proposition that a
decision in a formal suit can appear as res judicata against the person who was a proforma
defendant in that suit against whom no relief was claimed therein.
16. This Court has considered the submissions and rival submissions put forth by
both the learned counsel for the petitioners and respondent. In the facts and circumstances of
the case, this Court is of the view that the petitioners have no independent rights to claim
over the property and whatever rights they are having, it emanates only from the first
defendant and once a decree is passed against the first defendant the alleged rights of the
petitioners merges with the first defendant and they cannot claim any independent right so as
to call them as objectors especially in the light of the fact that with wide open eyes, they
participated, in the entire trial proceedings and engaged one counsel and adopted the
written statement filed by the first defendant and for avoiding the decree, they cannot now
turn around and say that they have independent rights. They are residing there and
therefore a separate adjudication has to be conducted under Order XXI, Rule 35, Order
XXI, Rule 97 etc., is also not acceptable to this Court. The word “reside” gets its meaning
depending upon the context in which it is used as a general meaning cannot be applicable on
the facts of the present case.
17. This Court is not in agreement with the submissions put forth by the learned
counsel for the petitioner and on the contrary, the submissions put forth by the learned
counsel for the respondent is acceptable on legally and hence this Court is not inclined to
interfere with the order passed by the lower Court under Section 115 of C.P.C. using
revisional powers this Court is sitting not as an appellate Court. This Court’s concern is
whether there is any material irregularity or abuse of process of law or even perversity so
as to interfere with the order of the lower Court. This Court finds that no such ingredients are
found in the said order, no such excesses are found in the said order and therefore, this
Court is dismissing the civil revision petition.
18. In the result, this civil revision petition is dismissed. Consequently connected
M.P.No. 1 of 2007 is closed. No costs. Interim stay of this order is granted only for a
period of two weeks from 28.06.2007 in view of the representation by the learned counsel for
petitioners that the petitioners may move the Honourable Supreme Court of India by way
of Special Leave Petition.
Revision dismissed.

[2007 (2) TNCJ 760 (Mad)]

MADRAS HIGH COURT
BEFORE:
M. CHOCKALINGAM
THE JUNIOR ENGINEER (O&M)
RURAL TNEB AND OTHERS ...Petitioners
Versus
ELUMALAI @ MUNIAPPAN ...Respondent
[CRP. NPD No. 1819 of 2006 and M.P.No. 1 of 2006, decided on 24 July, 2007]
th

Civil Procedure Code, 1908—Section 115, Order XXXIX, Rule 3—Decree of

mandatory injunction—Appeal pending—Execution proceeding initiated—Respondent
moved for arrest of applicant—In circumstances of case proceeding stayed—But Court
below directed to dispose of appeal within three months.
It is true that there was a delay of 443 days in making so. But, in I.A.No.147 of 2004,
the delay was condoned on condition of payment of cost, and on payment of cost, the
appeal was taken on file. If to be so, only after the exercise of the judicial mind, the Court
below would have allowed the application by condoning such a delay and ordered payment
of cost. Having allowed the application for condonation of delay, there was nothing for the
Court below to comment on the reason of delay for dismissing the application for stay.
Added circumstance is the pendency of the E.P., in which the respondent/plaintiff has sought
for the arrest of the Electricity Board officials for the disobedience of the orders of the Court.
Under the circumstances, this Court is of the view that stay is a must. If not stay is granted,
then the E.P. would be further proceeded with, and there is no meaning in keeping the appeal
pending before the lower Court. It is a fit case where stay should have been granted since the
circumstances warrant so.
Hence, the order of the lower Court is set aside. I.A.No.57 of 2006 is allowed, and
stay is granted. However, the lower Court is directed to dispose of the appeal within a
period of three months from the date of receipt of a copy of this order.
(Paras 4 and5)
Counsel.—Mr. N. Muthuswami, for the petitioners; No appearance, for the
respondent.
 JUDGMENT
M. CHOCKALINGAM, J.—Challenge is made to an order of the learned Subordinate
Judge, Dharmapuri, made in I.A.No.57 of 2006 in A.S.No.18 of 2006.
2. The Court heard the learned counsel for the petitioners. When the matter was taken
up for enquiry, there was no representation on the side of the respondent.
3. After hearing the Counsel and looking into the materials available and in particular,
the order under challenge, it would be quite clear that originally, a suit in O.S.No.222/2000
was filed by the respondent herein against the revision petitioners herein who were
representing the Electricity Board, for a relief of mandatory injunction to effect the electricity
service connection. On contest, a decree came to be passed on 20.11.2002, and in preferring
an appeal, there was a delay of 443 days. An application to condone the said delay was filed
in I.A.No.147 of 2004. The said application on contest, was allowed on condition of
payment of cost. The cost has been paid. Thus, the appeal was taken on file. Pending the
appeal, I.A.No.57 of 2006 was filed seeking stay of the execution proceedings. Since
E.P.No.36 of 2004 filed by the respondent/plaintiff, pointing to the disobedience of the order
of mandatory injunction, was pending, and he sought execution by way of arrest and sending
the officials of the Electricity Board to prison, stay was asked for. The lower Court has
dismissed the application for stay pointing to the reasons among other reasons, that while
filing the appeal in A.S.No.18 of 2006, there was a delay of 443 days, and had the petitioners
herein been really interested in filing the appeal, they would have preferred the same in
time, but not done so, and hence, stay should not be granted.
4. After looking into the circumstances and also the reason adduced by the Court
below, this Court is of the considered opinion that the order of the Court below has got to be
made undone by upsetting the same. It is not in controversy that the decree passed in the
original suit by the trial Court, was being challenged in the appeal. The trial Court has
granted mandatory injunction to effect electricity service connection. The appellants in that
appeal, who are the revision petitioners herein, thought it fit to prefer an appeal.
Accordingly, the appeal was filed. It is true that there was a delay of 443 days in making so.
But, in I.A.No.147 of 2004, the delay was condoned on condition of payment of cost, and on
payment of cost, the appeal was taken on file. If to be so, only after the exercise of the
judicial mind, the Court below would have allowed the application by condoning such a
delay and ordered payment of cost. Having allowed the application for condonation of delay,
there was nothing for the Court below to comment on the reason of delay for dismissing the
application for stay. Added circumstance is the pendency of the E.P., in which the
respondent/plaintiff has sought for the arrest of the Electricity Board officials for the
disobedience of the orders of the Court. Under the circumstances, this Court is of the view
that stay is a must. If not stay is granted, then the E.P. would be further proceeded with, and
there is no meaning in keeping the appeal pending before the lower Court. It is a fit case
where stay should have been granted since the circumstances warrant so.
5. Hence, the order of the lower Court is set aside. I.A.No.57 of 2006 is allowed, and
stay is granted. However, the lower Court is directed to dispose of the appeal within a
period of three months from the date of receipt of a copy of this order. Accordingly, this civil
revision petition is allowed. No costs. Consequently, connected MP is closed.
Petition allowed.
 [2007 (2) TNCJ 763 (Mad)]
MADRAS HIGH COURT
BEFORE:
N. PAUL VASANTHAKUMAR, J.
D.K. BHASKARAN ...Appellant
Versus
M/S. BARTON TRUST ...Respondent
and
M/S. B.P.V. CLASSIC TEA FACTORY PVT. LTD.
REP. BY ITS MANAGING DIRECTOR D.K.
BHASKARAN AND ANOTHER ...Appellants
Versus
M/S. FORBES AND COMPANY TEA BROKERS ...Respondent
[C.M.A.No. 1656 of 2007 and M.P.No. 2 of 2007 and C.M.A.No. 1657 of 2007 and M.P.No.
2 of 2007, decided on 27th July, 2007]
Civil Procedure Code, 1908—Order IX, Rule 13—Ex parte order—Setting aside
of—Ex parte order set aside by Court below but cost of Rs. 3,39,287/- and Rs. 44573/-
imposed—Legality of—Held, if sufficient cause is shown for non appearance Court may
set aside ex parte order on reasonable cost—Hence condition imposed is onerous and
liable to be set aside—Cost of Rs. 2000 and Rs. 3000 imposed.
The Trial Court, by separate orders dated 11.9.2006, directed the
appellants/respondents to deposit costs of Rs.44,573.25 and Rs.3,71,175/- respectively on or
before 4.10.2006 and in case of failure to comply with the said direction, ordered that the
petitions shall stand dismissed. The Trial Court posted the matter on 5.10.2006 for reporting
compliance of the direction. The case was posted before the Trial Court on several dates
from 5.10.2006 to 23.1.2007 and on 23.1.2007 the Trial Court passed the following order:
“For production of High Court order. High Court order copy not produced. Costs
not deposited. Petition is dismissed.”
It is against the said order, the defendants in the suits filed the present civil
miscellaneous appeals.
In the decision cited by the learned counsel for the respondent reported in AIR 1953
Mad 464 (Nalabala Chalamiah v. Nalabala Rubiah) this Court upheld the direction to
deposit cost of the suit was not found unreasonable and the same cannot be applied to the
facts of this case since cost of the suit in C.M.A.No.1656 of 2007 is Rs.3,39,287/- and in
C.M.A.No.1657 of 2007, the cost imposed was Rs.44,573.25. The said amounts having been
huge amounts, I am of the view that the condition imposed is onerous and the same is liable
to be set aside. However, taking note of the expenses incurred by the respondent due to the
absence of the appellants in these appeals, cost of Rs.2,000/- is ordered to be paid to the
respondents in C.M.A.No.1656 of 2007 and Rs.3,000/- is ordered to be paid to the
respondents in C.M.A.No.1657 of 2007 as compensatory costs.
(Paras 4 and 10)
Case law.—AIR 1958 Mad 522; 1965 (1) MLJ 209; AIR 1972 All 166; AIR 1977 Cal
428; AIR 1979 All 370; AIR 1987 Cal 197; 196 (7) Scale 410; 1996 (10) SCC 93; 2000 (3)
SCC 54; 2002 (3) SCC 159—relied on; AIR 1953 Mad 464—Not applicable.
 Important Point
Setting aside of ex parte order.—The ex parte order can be set aside on showing
sufficient cause.
Counsel.—Mr. S.V. Jayaraman, Sr. Counsel for M/s. A. Bobblie & L. Mouli, for the
appellants; Mr. Srinath Sridevan for the respondents.
JUDGMENT
N. PAUL VASANTHAKUMAR, J.—The above civil miscellaneous appeals are filed
against the fair and decretal orders dated 23.1.2007 made in I.A.Nos.151 of 2006 in O.S.No.1
of 2005 and I.A.No.152 of 2006 in O.S.No.2 of 2005 respectively, petitions filed under Order
IX, Rule 13, CPC to set aside the ex parte decrees passed in the respective suits on
18.10.2005.
2. The respondents herein filed O.S.No.1 of 2005 and 2 of 2005 claiming a sum of
Rs.5,41,030.88 and Rs.45,23,815.24 respectively with 18% interest per annum and for costs.
As the defendants/ appellants herein remained absent on 18.10.2005, they were set ex parte
and the suits were allowed as prayed for.
3. To set aside the ex parte decrees, the appellants herein filed I.A.Nos.151 of 2005
and 152 of 2005 respectively under Order IX, Rule 13, CPC stating that the appellants were
laid up with severe fever and diarrhoea from 16.10.2005 to 25.10.2005 and when the suits
were posted for cross-examination of the plaintiffs on 18.10.2005, the appellants/defendants
could not attend the Court nor instruct their counsel and that the absence was not wilful nor
deliberate. The said applications were resisted by the respondents/plaintiffs herein
contending that the applications were filed with mala fide intention to delay the execution of
the decrees and the reasons stated in the affidavit are false.
4. The Trial Court, by separate orders dated 11.9.2006, directed the
appellants/respondents to deposit costs of Rs.44,573.25 and Rs.3,71,175/- respectively on or
before 4.10.2006 and in case of failure to comply with the said direction, ordered that the
petitions shall stand dismissed. The Trial Court posted the matter on 5.10.2006 for reporting
compliance of the direction. The case was posted before the Trial Court on several dates
from 5.10.2006 to 23.1.2007 and on 23.1.2007 the Trial Court passed the following order:
“For production of High Court order. High Court order copy not produced. Costs
not deposited. Petition is dismissed.”
It is against the said order, the defendants in the suits filed the present civil
miscellaneous appeals.
5. I have heard the learned senior counsel appearing for the appellants as well as the
learned counsel appearing for the respondents in the light of the provisions contained in
Order IX, Rule 13, CPC.
6. The point for consideration in these appeals is whether the discretion exercised by
the Trial Court while setting aside the ex parte decrees ordering deposit of costs of the suits,
is sustainable.
7. The reason given by the appellants for their absence on 18.10.2005 as stated in the
affidavit filed in support of the petition to set aside the ex parte decree is that the appellant
was laid up with severe fever and diarrhoea from 16.10.2005 to 25.10.2005 and he was bed-
ridden and hence he could not move out. The learned Trial Judge, after holding that the
sufficient cause is shown to set aside the ex parte decrees, by order dated 11.9.2006 imposed
a onerous condition to deposit the costs referred above on or before 4.10.2006.
 8. It is true that the Court, which passes order in set aside petitions, is vested with the
discretion to allow the petition on terms. It has to be ascertained whether in this case, the
course adopted by the trial Court is just and proper, in the circumstances of the case, wherein
the petitioner failed to appear before the Court due to his illness.
9. Sufficient cause having been made out even as per the order of the Trial Court,
onerous condition for restoration cannot be imposed while setting aside the ex parte orders
under Order IX, Rule 13, CPC. The above issue is considered in a number of decisions.
(a) In the decision reported in AIR 1958 Mad. 522 (Sri Krishna Rice Mills v.
P.Rajagopala Konar) while setting aside an ex parte decree, this Court awarded
cost of Rs.75/- to compensate the respondent for the waste of time, money and
energy caused to him and the suit was restored for fresh disposal.
(b) In 1965 (1) MLJ 209 (Dhanalakshmi Ammal v. Shanbaga-lakshmi Ammal and
others) a condition imposed to deposit the cost to hear the application to set
aside the ex parte decree was found erroneous and set aside and it is held that the
conditional order can be passed for restoration of the suit which must be just and
reasonable.
(c) In AIR 1972 All 166 (Nanak Chand v. Goswami Preetam Lal) a learned Judge
of the Allahabad High Court, following a Division Bench decision of that Court
reported in AIR 1926 All 142 (Ahmad Hussain v. Har Dayal), held that an order
restoring the case for default of condition of payment of a reasonable amount of
the cost to the opposite party can be passed under Order IX, Rule 13, CPC.
(d) A Division Bench of the Calcutta High Court in the decision reported in AIR
1977 Cal 428 (Foundation Overseas Ltd. v. Punjab National Bank Ltd.)
considered a direction to restore the suit, which was dismissed for default to
furnish security as condition precedent, was held not valid.
(e) The Allahabad High Court in AIR 1979 All 370 (Raj Kumar v. Mohan Meakin
Breweries) held that the direction to deposit 1/5th of the suit amount as condition
precedent to set aside ex parte decree even after giving a clear finding that there
had been sufficient cause for being absent on the date when exparte decree was
passed was held illegal.
(f) In AIR 1987 Cal 197 (LIC of India v. Anjan Kumar) the Calcutta High Court
held that while setting aside the ex parte decree imposing of condition must be
reasonable and must have some justification having regard to the attending
circumstances and the same cannot be imposed arbitrarily.
(g) A Direction to pay mesne profit as condition precedent for setting aside the ex
parte decree was cancelled by the Honourable Supreme Court in the decision
reported in 1996 (7) Scale 410 (Kumud Lata Das v. Indu Prasad).
(h) A direction to deposit the entire decree amount as well as cost for restoration of
the suit was set aside by the Honourable Supreme Court in the decision reported
in (1996) 10 SCC 93 (State of Orissa v. Sibaram Baral).
(i) Sufficient cause for non-appearance to be proved on the date of hearing alone
and not anterior or posterior to the said date was considered by the Honourable
Supreme Court in the decision reported in (2000) 3 SCC 54 (G.P.Srivastava v.
R.K.Raizade and others). In paragraph 7 of the Judgment the Supreme Court
held thus:
 “7. Under Order IX, Rule 13, CPC an ex parte decree passed against a defendant
can be set aside upon satisfaction of the Court that either the summons were not
duly served upon the defendant or he was prevented by any “sufficient cause” from
appearing when the suit was called on for hearing. Unless “sufficient cause” is
shown for non-appearance of the defendant in the case on the date of hearing, the
Court has no power to set aside an ex parte decree. The words “was prevented by
any sufficient cause from appearing” must be liberally construed to enable the
Court to do complete justice between the parties particularly when no
negligence or inaction is imputable to the erring party. Sufficient cause for the
purpose of Order IX, Rule 13 has to be construed as an elastic expression for which
no hard and fast guidelines can be prescribed. The Courts have a wide discretion in
deciding the sufficient cause keeping in view the peculiar facts and circumstances
of each case. The “sufficient cause” for non-appearance refers to the date on which
the absence was made a ground for proceeding ex parte and cannot be stretched to
rely upon other circumstances anterior in time. If “sufficient cause” is made out for
non-appearance of the defendant on the date fixed for hearing when ex parte
proceedings were initiated against him, he cannot be penalised for his previous
negligence which had been overlooked and thereby condoned earlier. In a case
where the defendant approaches the Court immediately and within the statutory
time specified, the discretion is normally exercised in his favour, provided the
absence was not mala fide or intentional. For the absence of a party in the case the
other side can be compensated by adequate costs and the lis decided on merits.”
(Emphasis supplied)
(j) An unreasonable condition imposed to restore the suit which was decreed ex
parte was found erroneous by the Honourable Supreme Court in the decision
reported in (2002) 3 SCC 159 (V.K. Industries v. M.P. Electricity Board),
wherein in paragraphs 4 to 6 it is held thus:
“4. The only grievance of the appellants is that the terms, upon which ex parte
decree is set aside, are onerous and not reasonable. On behalf of the respondents
submission was made supporting the said terms as justified.
5. Ordinarily, a money decree is not stayed unconditionally and the judgment-
debtor would be put on terms. Even so, such conditions must be reasonable having
regard to all relevant factors. Although ex parte decree was passed against the
appellants, once it is set aside on the ground of non-service of suit
summons the money decree did not exist for execution. It is no doubt true that in
restoring a case the Court may impose conditions to deposit costs or the decretal
amount or some portion thereof or to ask the defendant to give security but such
conditions should be reasonable and not harshly excessive. In the impugned order
the appellants are put on terms to deposit a sum of Rs.2,00,000 and to furnish a
bank guarantee for the remaining suit claim within a period of two months. In our
view these terms are onerous, harsh and unreasonable in the facts and
circumstances of the case and that too even before the trial of the suit on merits.
6. On 29-10-2001, the learned counsel for the appellants stated that within two
weeks, a sum of Rs.50,000 shall be deposited in the trial Court and notice was
issued on that day. During the course of hearing the learned counsel informed
that a sum of Rs.50,000 is already deposited in the trial Court.”
 10. In the decision cited by the learned counsel for the respondent reported in AIR
1953 Mad 464 (Nalabala Chalamiah v. Nalabala Rubiah) this Court upheld the direction to
deposit cost of the suit was not found unreasonable and the same cannot be applied to the
facts of this case since cost of the suit in C.M.A.No.1656 of 2007 is Rs.3,39,287/- and in
C.M.A.No.1657 of 2007, the cost imposed was Rs.44,573.25. The said amounts having been
huge amounts, I am of the view that the condition imposed is onerous and the same is liable
to be set aside. However, taking note of the expenses incurred by the respondent due to the
absence of the appellants in these appeals, cost of Rs.2,000/- is ordered to be paid to the
respondents in C.M.A.No.1656 of 2007 and Rs.3,000/- is ordered to be paid to the
respondents in C.M.A.No.1657 of 2007 as compensatory costs. The said amount shall be
paid by the appellants within a period of two weeks from the date of receipt of copy of this
order and file a memo to that effect before the trial Court. On such memo being filed, the
trial Court is directed to restore the suits. The suits having been filed in the year 2005 and
being money suits, the trial Court is directed to dispose of the suits within a period of two
months from the date of restoration of the suits.
The civil miscellaneous appeals are allowed with the above directions. No costs.
Appeals allowed.

[2007 (2) TNCJ 769 (Mad)]

MADRAS HIGH COURT
BEFORE:
M. CHOCKALINGAM, J.
LATHA SRIDHAR ...Petitioner
Versus
R. VIJAYAKUMAR ...Respondent
[C.R.P. (NPD) No. 334 of 2005 and CMP No. 1982 of 2005, decided on 30 July, 2007]
th

Civil Procedure Code, 1908—Order XXXVII, Rule 3 (4)—Leave to defend—Suit

for recovery of money on strength of two promissory notes—Defendant
revisionist denying execution and consideration in promissory notes—Court below
dismissed application of defendant—Legality of—Held, defendant not admitted
execution of promissory notes hence leave to defend could be granted—Hence order of
Court below set aside and leave to defend granted.
After looking into the materials available and in particular, the order under challenge,
this Court is of the considered opinion that the lower Court was misled by a presumption
which was drawn by itself, as if the execution of the promissory notes was admitted.
Nowhere it is found in the affidavit in support of the application where the leave to defend
was sought for, that the petitioner has admitted the execution. Under the circumstances, the
lower Court on the impression that the execution of the promissory notes was admitted, had
further proceeded to hold that the defence that was raised, was only flimsy, vexatious and in
order to drag on the proceedings, and it is not a fit case where leave could be granted. In a
given case like this, where even the execution and consideration in the promissory notes are
all facts denied, and apart from that, the triable issues are noticed, a duty is cast upon the
Court to grant the relief of leave to defend. In the instant case, it should have been done; but,
the lower Court failed to do so. Under the circumstances, the order of the lower Court has
got to be made undone only by upsetting the same. Accordingly, the order of the lower
Court is set aside, and leave is granted to the petitioner.
(Para 4)
Counsel.—Mr. A.R. Nixon, for the petitioner; Mr. A. Venkatesan, for the respondent.
JUDGMENT
M. CHOCKALINGAM, J.—The second defendant in a suit for recovery of money,
whose request for leave to defend in I.A.No.2096 of 2003 was denied, has filed the revision
before this Court.
2. The Court heard the learned counsel on either side.
3. The respondent/plaintiff filed O.S.No.5554 of 2002 for recovery of money on the
strength of two promissory notes, alleging that those promissory notes were executed by the
defendants by getting Rs.39,800/-; and that they agreed to pay the principal along with
interest at 30% per annum. The instant application was filed seeking leave to defend
under Order XXXVII, Rule 3(4) of C.P.C. denying the execution and consideration in the
promissory notes. The revision petitioner has further added that the plaintiff was an utter
stranger, and she has nothing to do with the promissory note transaction as found in the
plaint. The lower Court on enquiry has dismissed the application. Hence, the revision has
arisen before this Court.
4. After looking into the materials available and in particular, the order under
challenge, this Court is of the considered opinion that the lower Court was misled by a
presumption which was drawn by itself, as if the execution of the promissory notes was
admitted. Nowhere it is found in the affidavit in support of the application where the leave to
defend was sought for, that the petitioner has admitted the execution. Under the
circumstances, the lower Court on the impression that the execution of the promissory notes
was admitted, had further proceeded to hold that the defence that was raised, was only flimsy,
vexatious and in order to drag on the proceedings, and it is not a fit case where leave could be
granted. In a given case like this, where even the execution and consideration in the
promissory notes are all facts denied, and apart from that, the triable issues are noticed, a
duty is cast upon the Court to grant the relief of leave to defend. In the instant case, it should
have been done; but, the lower Court failed to do so. Under the circumstances, the order of
the lower Court has got to be made undone only by upsetting the same. Accordingly, the
order of the lower Court is set aside, and leave is granted to the petitioner. He should appear
before the lower Court and get along with the proceedings. This civil revision petition is
allowed. No costs. Consequently, connected CMP is closed.
Revision allowed.

[2007 (2) TNCJ 771 (Mad)]

MADRAS HIGH COURT
BEFORE:
M. CHOCKALINGAM, J.
M. KARTHEESWARAN AND OTHERS ...Petitioners
Versus
R. ESWARAN ...Respondent
[C.R.P. (NPD) No. 1678 of 2007, decided on 27 th July, 2007]
 Rent control proceeding—Petitioners having Will of original owner whereby they
became owner—Respondent is tenant—Will and affidavit filed before Rent Controller
but evidence not recorded— Hence matter remanded to Court below to decide it and
also whether they are competent to prosecute RCOP.
It is not in controversy that the respondent herein was the tenant under Chinnammal,
and the petitioners before this Court, on her death, filed before the Rent Controller those
applications stating that they are the legal representatives of Chinnammal; and that the
property has come to their hands in view of the fact that the Will executed by her, has come
into force. But, it is pertinent to point out that first of all, in the RCOP, they must show that
they are the legal representatives of the deceased Chinnammal. In the instant case, what was
all done by them was only the production of the Will and the affidavit filed; but, not even
evidence was recorded. The Rent Controller has acted upon so merely on the words of the
petitioners and allowed them to act as legal representatives of the deceased Chinnammal, and
thus, allowed the applications. The contention put forth by the respondent’s side that he is
equally entitled to the property cannot now be heard. Now, at this juncture, the only thing
which has got to be done is whether the petitioners could be allowed to prosecute the RCOP
as legal representatives of Chinnammal has got to be found out. For that purpose, the order
passed in RCA No.8/2006 dismissing the application in I.A.No.46/2005, is set aside.
Following the same, the order originally made in I.A.No.46/2005 by the Rent Controller, is
also set aside. The matter is remitted back to the Rent Controller to record the evidence of
both the parties and to find out whether the petitioners are the legal representatives of
Chinnammal and whether they are competent to prosecute the RCOP.
(Para 6)
Counsel.—Mr. N. Manokaran, for the petitioners; Mr. V. Raghavachari, for the
respondent.
JUDGMENT
M. CHOCKALINGAM, J.—Challenge is made to an order of the Rent Control Appellate
Authority in RCA No.8 of 2006 whereby an order of the Rent Controller of the said place in
I.A.No.46 of 2005, an application to set aside an order of dismissal of RCOP No.1 of 2004,
was reversed, and the application was dismissed.
2. The Court heard the learned Counsel on either side.
3. The said RCOP No.1 of 2004 was originally brought forth by one Chinnammal
alleging that the respondent herein was her tenant; and that he was to be evicted on the
ground of wilful default. The said RCOP was dismissed for default on 18.3.2005.
Thereafter, four applications were filed by the revision petitioners namely I.A.No.45/2005 to
condone the delay of 83 days in making an application to set aside the order of dismissal
of the RCOP for non-prosecution, which is I.A.No.46/2005. In order to condone the
delay in making an application to set aside the abatement, I.A.No.47/2005 was filed, and the
said application to set aside the abatement is I.A.No.48/2005. On contest, all those
applications were ordered. Aggrieved over the order passed in I.A.No.46/2005, RCA No.8 of
2006 was filed by the respondent herein before the appellate forum. On enquiry, the RCA
was allowed. Not satisfied with the order, the petitioners in I.A.No.46/2005 before the
Rent Controller, have brought forth this revision petition before this Court.
4. The only contention put forth by the learned Counsel for the petitioner is that the
third petitioner herein was the power holder of the original owner Chinnammal; that
Chinnammal had executed a Will in favour of these petitioners; that on her death, the Will
came into force; that they became the owners of the property; that under the circumstances,
the applications were filed; that on contest, they were all allowed; that the respondent herein
has challenged only the order in I.A.No.46/2005 which was an application to set aside the
order of dismissal of the RCOP for default; that they have not challenged the orders
which were passed in the other three applications; that under the circumstances, the appellate
authority should have dismissed the RCA and on the contrary, allowed the same, and hence,
it has got to be set aside.
5. Contrary to the above, it is contended by the learned counsel for the respondent that
the respondent is equally entitled to the property like the petitioners; that it is true that in
the course of the affidavit, the petitioners averred that there was a Will executed by
Chinnammal; but, the Will was not proved in any way; that the Rent Controller has acted on
the averments and the copy of the Will being produced, in the absence of any proof or
evidence; that in the first instance, the petitioners should have proved that they are competent
to prosecute the matter as the legal representatives of Chinnammal; but, they have not done
so; that under the circumstances, the Rent Controller should have dismissed the application in
I.A.No.46/2005 and instead, allowed the same; that so far as the other applications are
concerned namely I.A.No.47 and 48/2004, they are all only consequential reliefs; that so long
as the petitioners were not able to show that they were the legal representatives of
Chinnammal, then the RCOP should not be further proceeded with; that under the
circumstances, the appellate forum has reversed the order of the Rent Controller and hence,
that order has got to be sustained and the revision be dismissed.
6. After careful consideration of the submissions made, this Court is of the considered
opinion that the order of the appellate authority has got to be set aside. In the instant case, it
is not in controversy that the respondent herein was the tenant under Chinnammal, and the
petitioners before this Court, on her death, filed before the Rent Controller those applications
stating that they are the legal representatives of Chinnammal; and that the property has come
to their hands in view of the fact that the Will executed by her, has come into force. But, it is
pertinent to point out that first of all, in the RCOP, they must show that they are the legal
representatives of the deceased Chinnammal. In the instant case, what was all done by them
was only the production of the Will and the affidavit filed; but, not even evidence was
recorded. The Rent Controller has acted upon so merely on the words of the petitioners and
allowed them to act as legal representatives of the deceased Chinnammal, and thus, allowed
the applications. The contention put forth by the respondent’s side that he is equally entitled
to the property cannot now be heard. Now, at this juncture, the only thing which has got to
be done is whether the petitioners could be allowed to prosecute the RCOP as legal
representatives of Chinnammal has got to be found out. For that purpose, the order passed in
RCA No.8/2006 dismissing the application in I.A.No.46/2005, is set aside. Following the
same, the order originally made in I.A.No.46/2005 by the Rent Controller, is also set aside.
The matter is remitted back to the Rent Controller to record the evidence of both the parties
and to find out whether the petitioners are the legal representatives of Chinnammal and
whether they are competent to prosecute the RCOP. If to be so, necessary orders are to be
passed by the Rent Controller. The parties are given liberty to put forth their contentions
before the Rent Controller.
7. Accordingly, this civil revision petition is allowed. No costs.
Revision allowed.

[2007 (2) TNCJ 774 (Mad)]

 MADRAS HIGH COURT
BEFORE:
A.P. SHAH, C.J., PRABHA SRIDEVAN AND P. JYOTHIMANI, JJ.
E.S.I. CORPORATION REPRESENTED
BY ITS REGIONAL DIRECTOR ...Appellant
Versus
BETHALL ENGINEERING COMPANY, REP.
BY MRS. S.V. UMAYAL, PROPRIETRIX ...Respondent
[C.M.A. (NPD) No. 1765 of 1999, decided on 24th July, 2007]
Employees State Insurance Act, 1948—Section 2 (9)—Contribution towards
insurance—Liability of—Issue whether right of principal employer to reject or accept
work completion as accomplished by a contractor, the immediate employer through his
employees, is in itself an effective and meaningful supervision as envisaged under
Section 2 (9) of Act referred to larger Bench as there was conflicting view— Held, no
conflict between judgments of Division Benches, since fact situations are different—
Further held, right of principal employer to reject or accept work done by
contractor through his employees is by itself cannot be construed as effective and
meaningful supervision as envisaged under Section 2 (9)—Matter referred to single
Judge for disposal of appeal.
There is no conflict between the judgments of the Division Benches, since the fact
situations are totally different. So far as the issue referred to us is concerned, we answer the
same in the negative and hold that the right of the principal employer to reject or accept the
work done by the contractor through his employees is by itself cannot be construed as
effective and meaningful ‘supervision’ as envisaged under Section 2(9) of the Act.
(Para 9)
Case law.—1992 (1) LLJ 475 (SC); 1989 (2) LLN 494 (DB); 2003 (1) L.W. 685; AIR
1974 SC 37; 1997 (2) LLJ 396; 1974 (1) LLJ 367—referred.
Counsel.—Ms. R. Vaigai, assisted by Mr. S. Vaithyanathan for Mr. G. Desappan, for
the appellant; Mr. A.L. Somayaji, SC, Asstd. By S. Ravindran for M/s. T.S. Gopalan & Co.,
for the respondent.
JUDGMENT
A.P. SHAH, C. J.—The learned single Judge has made this reference to the Larger
Bench as he felt that there is an apparent conflict between the two Division Bench Judgments
of this Court as regards the issue whether the right of the principal employer to reject or
accept work on completion, on scrutinizing compliance with job requirements, as
accomplished by a contractor, the immediate employer, through his employees, is in itself an
effective and meaningful ‘supervision’ as envisaged under Section 2(9) of the
Employees State Insurance Act, 1948 (for brevity’s sake, hereinafter will be referred to as
‘the Act’).
2. The facts leading to this reference may be stated shortly. The Southern Railway
placed orders in respect of certain engineering works with the respondent and for execution
of the works, the respondent used to assign some job work to outside parties by supply of
materials. The outside parties were having their own establishment and employees.
According to the respondent, the work was done on the specifications provided by the
respondent at the premises of the third parties under their own supervision and control and
the parties were paid on the basis of job works done by them and the respondent had no
supervision or control over the workmen of the outside parties. There was thus no master and
servant relationship between the respondent and the employees of the third parties. The
appellant-Regional Director, Employees State Insurance Corporation in exercise of his power
under Section 45-A of the Act, determined the contribution payable by the respondent
towards labour charges in respect of job work entrusted to third parties at Rs.13,604.40
and he also determined as regards the loading and unloading charges with which we are not
concerned in the present reference. The respondent filed E.S.I.O.P.No.46 of 1990 under
Section 75 of the Act before the Employees’ State Insurance Court. The Employees’ State
Insurance Court on a consideration of the oral and documentary evidence available on
record and by relying upon the decision of the Supreme Court in Calcutta Electric Supply
Corporation (C.E.S.C.) Limited etc. v. Subhash Chandra Bose and Others, 1992 (1) LLJ 475
(SC) and that of the Division Bench of Bombay High Court in Parle Bottling Company
(Private) Limited v. Employees’ State Insurance Corporation, Bombay, 1989 (2) LLN 494
(DB) held that the respondent is not liable to pay any contribution in respect of the work done
outside the establishment and the employees of the contractor are not covered by the Act.
Being aggrieved by that, the Employees’ State Insurance Corporation has filed the present
appeal.
3. Before the learned Single Judge, it was argued on behalf of the appellant that since
the respondent had arrogated to itself the right to reject the end product manufactured by the
contractors/ employees, that by itself was ‘supervision’ so as to attract the provisions of
the Act. In support of this submission, reliance was placed on a Division Bench judgment of
this Court in the case of Poonam Easwardas, Proprietrix M/s. Kaleel Corporation v.
Employees’ State Insurance Corporation, 2003 (1) L.W. 685, wherein the Division Bench
following the decision rendered by the Supreme Court in the case of Silver Jubilee
Tailoring House v. Chief Inspector of Shops and Establishments, AIR 1974 SC 37 held that
the fact that the employer has the right to direct the worker to re-stitch the garment would
itself establish that there exists an element of control and supervision as formulated by the
decision of the Supreme Court and that would suffice to sustain the finding that such persons
are employees for the purpose of the Act, and consequently, the employer is liable to pay
contribution on the amounts paid to the persons who did tailoring work though such work
was done outside the premises of the employer and by using tools which did not belong to the
employer. On the other hand, learned Senior Counsel appearing for the respondent placed
reliance on the Division Bench judgment of this Court in South India Surgical
Company v. The Regional Director, Employees’ State Insurance Corporation, Madras-34,
1997 (2) LLJ 396, wherein following the decision of the Supreme Court in Calcutta Electric
Supply Corporation Limited v. Subhash Chandra Bose, cited supra, it was held that even in
cases where supervisory controls were exercised by the manufacturer over the contractors for
quality reasons, that by itself would not lead to a conclusion that the workmen of those
contractors to become employees of the manufacturer within Section 2(9) of the Act. The
learned Single Judge felt that there is an apparent conflict between the said two Division
Bench judgments of this Court, which needs to be resolved by a Larger Bench and
consequently the matter has been referred to us.
4. After hearing Ms.R.Vaigai, learned counsel appearing for the appellant and
Mr.A.L.Somayaji, learned Senior Counsel for the respondent at some length, we are of the
opinion, there is no conflict between the Division Bench judgments in Poonam Easwardas,
Proprietrix M/s.Kaleel Corporation v. Employees’ State Insurance Corporation and South
India Surgical Company v. The Regional Director, Employees’ State Insurance
Corporation, cited supra. In Poonam Easwardas, Proprietrix, M/s.Kaleel
Corporation v. Employees’ State Insurance Corporation the Division Bench
(consisting of R.Jayasimha Babu, J. and N.V. Balasubramanian, J.) was dealing with the case
of employees who were directly engaged by the appellant, who was an exporter of garments.
The appellant used to buy clothes, and after cutting work was done by a master tailor
employed by the appellant, it used to engage persons who work outside in their own premises
on machines owned by them or hired by them to stitch the clothes cut by the appellant’s
master tailor. The appellant also supplied thread and buttons for making the garments
complete. Thus the work of producing a whole garment was done partly in the premises of
the appellant, wherein cutting had been done and partly in the place where the workers
carried out stitching. The Division Bench, following the decision in Silver Jubilee Tailoring
House v. Chief Inspector of Shops and Establishments, cited supra, held as follows:—
‘’10. It is true that the Court did consider the fact of employer providing the
tools to a person who used that tool to perform that work for the employer as an
important factor, but the decision of the Court did not rest only on that ground.
The Court, after holding that the supply of tools to the person who carried out the
work which was necessary or incidental to the work of the employer shall be an
important consideration in holding that the control and supervision lie with the
employer, proceeded to hold that apart from that circumstance, the fact that the
employer has the right to direct the employee to re-stitch the garment would itself
establish that there exists an element of control and supervision as formulated
by the decisions of the Apex Court, and that would suffice to sustain a finding that
such persons are employees for the purpose of the Act.”
(emphasis supplied)
5. The decision of the Supreme Court in Silver Jubilee Tailoring House v. Chief
Inspector of Shops and Establishments which has been relied upon by the Division Bench
was also concerning the direct employees of the establishment. The facts of the said case
are extracted in para 7 of the judgment, which is reproduced below:—
‘’7. The following facts appear from the finding of the learned Single Judge. All
the workers are paid on piece-rate basis. The workers generally attend the shops
every day if there is work. The rate of wages paid to the workers is not uniform.
The rate depends upon the skill of the worker and the nature of the work. When
cloth is given for stitching to a worker after it has been cut, the worker is told how
he should stitch it. If he does not stitch it according to the instruction, the employer
rejects the work and he generally asks the worker to re-stitch the same. When the
work is not done by a worker according to the instructions, generally no further
work would be given to him. If a worker does not want to go for work to the shop
on a day, he does not make any application for leave, nor is there any obligation on
his part to inform the employer that he will not attend for work on that day. If
there is no work, the employee is free to leave the shop before the shop closes.
Almost all the workers work in the shop. Some workers are allowed to take cloth
for stitching to their homes on certain days. But this is done always with the
permission of the proprietor of the shop. The machines installed in the shop belong
to the proprietor of the shop and the premises and the shop in which the work is
carried on also belong to him.”
The question before the Court was whether in the aforesaid facts and circumstances,
the conclusion drawn by the Chief Inspector of Shops and Establishments and the High Court
that there existed employer and employee relationship between the appellants and the
workers represented by the second respondent was correct. The Court held as follows:—
‘’31. The fact that generally the workers attend the shop which belongs to the
employer and work there, on the machines, also belonging to him, is a relevant
factor. When the services are performed generally in the employer’s premises,
this is some indication that the contract is a contract of service.
32. …….
33. That the workers work on the machines supplied by the proprietor of the shop
is an important consideration in determining the nature of the relationship. If the
employer provides the equipment, this is some indication that the contract is a
contract of service, whereas if the other party provides the equipment, this is some
evidence that he is an independent contractor. It seems that this is not based on the
theory that if the employer provides the equipment he retains some greater degree
of control, for, as already seen, where the control arises only from the need to
protect one’s own property, little significance can attach to the power of control for
this purpose. It seems, therefore, that the importance of the provision of
equipment lies in the simple fact that, in most circumstances, where a person hires
out a piece of work to an independent contractor, he expects the contractor to
provide all the necessary tools and equipment, whereas if he employs a servant he
expects to provide them himself. It follows from this that no sensible inference can
be drawn from this factor in circumstances where it is customary for servants to
provide their own equipment.— See Atiyah, P.S., “Vicarious Liability in the Law
of Torts”, p.65.
34. “ ...... The fact that a worker supplies his own tools is some evidence that he is
not a servant. On the other hand, if the worker is using his employer’s tools or
instrumentalities, especially if they are of substantial value, it is normally
understood that he will follow the directions of the owner in their use, and this
indicates that the owner is a master. This fact is, however, only of evidential
value.” It might be that little weight can today be put upon the provisions of tools
of minor character as opposed to plant and equipment on a large scale. But so far
as tailoring is concerned, I think the fact that sewing machines on which the
workers do the work generally belong to the employer is an important
consideration for deciding that the relationship is that of master and servant.
35. Quite apart from all these circumstances, as the employer has the right to
reject the end product if it does not conform to the instruction of the employer and
direct the worker to re-stitch it, the element of control and supervision as
formulated in the decisions of this Court is also present.”
(emphasis supplied)
Thus the decision of the Supreme Court in Silver Jubilee Tailoring House v. Chief
Inspector of Shops and Establishments, is clearly distinguishable as it covers the case of
direct employees and in the facts and circumstances of the case the Court was satisfied that
the test of power or control within the meaning of Section 2(24) of the Shops and
Establishments Act was established.
6. Coming to the Supreme Court decision in Calcutta Electric Supply Corporation
Limited v. Subhash Chandra Bose, it is seen that it arose in connection with the workers
employed by the third party contractors. In that case, the Calcutta Electric Supply
Corporation (hereinafter will be referred to as ‘C.E.S.C.’ for short) engaged various
contractors to carry out work of excavation, conversion of overhead electric lines and laying
of underground cables under public roads, as well as for repair and maintenance of the
aforesaid works. The respondents were given such contracts, the terms and conditions
of which were reduced to writing. The C.E.S.C. was on notice alerted by the Regional
Director of the Employees State Insurance Corporation that the employees whose wages
were being paid through such contractor would fall within the scope of Section 2(9) of the
Act. Thereafter, the C.E.S.C. on its part engaged in correspondence with the Association
of the Contractors and finally asked them to comply with the provisions of the Act
immediately or else it will deduct a lumpsum charge from their bills. The contractors then
moved the High Court of Calcutta by filing two writ petitions, which came to be
dismissed by the learned single Judge. The learned single Judge took the view that since
ultimate energising of the transmission lines was invariably effected by the C.E.S.C. after
proper checks were effected for laying of cables or other maintenance work, that step by
itself was ‘supervision’ so as to attract the provisions of the Act. The learned single
Judge also took the view that the ‘Act’ being a beneficial piece of legislation, enacted for the
protection and benefit of workers, required liberal interpretation, as was held in M.G.Beedi
Works v. Union of India, 1974 (I) LLJ 367 and then proceeded to hold that the principal
employer could not escape the liability for the works of his contractors, as the latter was
acting as an agent of the principal, and in that sense, confirmed the view of the Regional
Director of the C.E.S.C. Two appeals were filed against the dismissal of the two writ
petitions before the Division Bench of the High Court, which after reconsidering the matter
reversed the decision of the learned Single Judge and allowed the appeals. The C.E.S.C. then
approached the Supreme Court against the decision of the Division Bench. The Supreme
Court, while dismissing the appeals, held as follows:—
‘’13. In whatever manner the word ‘employee’ under Section 2(9) be construed,
liberally or restrictedly, the construction cannot go to the extent of ruling out the
function and role of the immediate employer or obliterating the distance between
the principal employer and the immediate employer. In some situations he is the
cut-off. He is the one who stumbles in the way of direct nexus being established,
unless statutorily fictioned, between the employee and the principal employer.
He is the one who in a given situation is the principal employer to the employee,
directly employed under him. If the work by the employee is conducted under the
immediate gaze or overseeing of the principal employer, or his agent, subject to
other conditions as envisaged being fulfilled, he would be an employee for the
purpose of Section 2(9). Thus besides the question afore-posed with regard to
supervision of the principal employer, the subsidiary question is whether
instantly the contractual supervision exercised by the immediate employer (the
electrical contractors) over his employee was exercised, on the terms of the
contract, towards fulfilling a self-obligation or in discharge of duty as an agent of
the principal employer.
14. M/s.P.M.Patel and Sons and Others v. Union of India and Others., 1986 (II)
LLJ 88, can also be of no help to interpret the word ‘supervision’ herein. The
word as such is not found employed in Section 2(f) of the Employees Provident
Fund and Miscellaneous Provisions Act, 1952, but found used in the text of the
judgment. It appears to have been used as a means to establish connection between
the employer and the employee, having regard to the nature of work performed.
But what has been done in Patel’s case cannot ipso facto be imported in the instant
case since the word ‘supervision’ in the textual context required independent
 construction. In the ordinary dictional sense ‘to supervise’ means to direct or
over-see the performance or operation of an activity and to over-see it, watch over
and direct. It is work under eye and gaze of someone who can immediately direct a
corrective and tender advice. In the textual sense ‘supervision’ of the principal
employer or his agent is on ‘work’ at the places envisaged and the word ‘work’ can
neither be construed so broadly to be the final act of acceptance or rejection of
work, nor so narrowly so as to be supervision at all times and at each and every
step of the work. A harmonious construction alone would help carry out the
purpose of the Act, which would mean moderating the two extremes. When the
employee is put to work under the eye and gaze of the principal employer, or his
agent, where he can be watched secretly, accidentally, or occasionally, while the
work is in progress, so as to scrutinise the quality thereof and to detect faults
therein, as also put to timely remedial measures by directions given, finally leading
to the satisfactory completion and acceptance of the work, that would in our
view be supervision for the purposes of Section 2(9) of the Act. It is the
consistency of vigil, the proverbial ‘a stitch in time saves nine’. The standards of
vigil would of course depend on the facts of each case. Now this function, the
principal employer, no doubt can delegate to his agent who in the eye of law is his
second self, i.e. a substitute of the principal employer. The immediate employer,
instantly, the electrical contractors, can by statutory compulsion never be the
agent of the principal employer. If such a relationship is permitted to be
established it would not only obliterate the distinction between the two, but would
violate the provisions of the Act as well as the contractual principle that a
contractor and a contractee cannot be the same person. The E.S.I.C. claims
establishment of such agency on the terms of the contract, a relationship express or
implied. But, as is evident, the creation of deduction of such relationship throws
one towards the statutory scheme of keeping distinct the concept of the
principal and immediate employer, because of diverse and distinct roles. The
definition is well drawn in Halsbury’s Laws of England (Hailsham Edition) Vol.I
at page 193 as follows:—
‘’An agent is to be distinguished on the one hand from a servant, and on the other
from an independent contractor. A servant acts under the direct control and
supervision of his master and is bound to conform to all reasonable orders given to
him in the course of his work; an independent contractor, on the other hand, is
entirely independent of any control or interference and merely undertakes to
produce a specified result, employing his own means to produce that result. An
agent, though bound to exercise his authority in accordance with all lawful
instructions which may be given to him from time to time by his principal, is not
subject to its exercise to the direct control and supervision of the principal.”
And this statement of law was used with approval by this Court in (AIR) 1977 SC
1677 titled as The Superintendent of Post Offices, etc. v. P.K.Rajamma, etc.
(emphasis supplied)
7. It is thus clear from the dicta of the Supreme Court that where the job work is
entrusted to a third party contractor and such third party contractor has engaged independent
workers, the fact that the principal employer has power to reject the end product
manufactured by the contractor, does not constitute an element of supervision within the
meaning of Section 2(9) of the Act. The judgment of the Division Bench in Poonam
Easwardas, Proprietrix, M/s.Kaleel Corporation v. Employees’ State Insurance Corporation
(supra) relied upon by the appellant Corporation is concerned with the direct employees of
the establishment and has no application to the facts of the instant case which is about the
contract employees.
8. The judgment of the Division Bench in South India Surgical Company v. The
Regional Director, Employees’ State Insurance Corporation relied upon by the Employees’
State Insurance Corporation is also concerning the liability to pay the ESI charges in respect
of the contractor/employees. The appellant in that case was a trading concern dealing in
surgical instruments. They had erected some machines necessary for the manufacture of
surgical instruments and lend them to some contractors for the manufacture of surgical
instruments. The Bench after referring to the decision in Calcutta Electric Supply
Corporation v. Subhash Chandra Bose, cited supra, held that the contractor employees
cannot be said to be the employee within the meaning of Section 2(9) of the Act merely
because the supervisory controls were exercised by the manufacturers over the contractors for
quality reasons. The relevant observations of the Division Bench are reproduced below:—
‘’18. In our opinion, so long as the appellant had arrogated to itself the right to
reject the end product manufactured by the disputed workmen, those workmen
could not be claimed to be falling within the meaning of Section 2(9) of the
Act.”. ... In fact, the Supreme Court, in its judgment reported in Calcutta Electric
Supply Corporation Limited v. Subhash Chandra Bose, 1992 (1) LLJ 475, has
gone to the extent of holding that even in cases, where supervisory controls were
exercised by the manufacturer over the contractors for quality reasons, that by
itself would not lead to a conclusion that the workmen of those contractors to
become employees of the manufacturer within Section 2(9) of the Act. In this
context, the appellant’s case is a fortiorari one in the sense that the appellant does
not exercise supervisory control and simply rejects the materials manufactured by
the disputed workmen.” (emphasis supplied)
9. In our opinion, there is no conflict between the judgments of the Division Benches,
since the fact situations are totally different. So far as the issue referred to us is concerned,
we answer the same in the negative and hold that the right of the principal employer to
reject or accept the work done by the contractor through his employees is by itself cannot
be construed as effective and meaningful ‘supervision’ as envisaged under Section 2(9) of the
Act.
10. Registry is directed to place the papers before the learned Single Judge for disposal
of the appeal in accordance with law.
Appeal disposed of.

[2007 (2) TNCJ 784 (Mad)]

MADRAS HIGH COURT
BEFORE:
M.CHOCKALINGAM, J.
HAJEE SIR ISMAIL SAIT WAKF ESTATE AND OTHERS ...Petitioners
Versus
F.J. IRANI AND OTHERS ...Respondents
[C.R.P. (NPD) No. 252 of 2002, decided on 25 July, 2007]
th
 (A) Tamil Nadu Buildings (Lease and Rent Control) Act, 1960—Section 12—
Jurisdiction of Rent Controller—Petition for enhancement of rent—Challenged for
want of jurisdiction—Held, property in dispute comprises of buildings and there is lease
and agreement which also proves that property in dispute consists of building—Hence
Rent Controller has jurisdiction to entertain petition.
From the very commencement till the proceedings are pending, it would be quite
evident that what was leased out originally was a warehouse, and subsequently
constructions were made by the tenants; but, by entering into all the agreements and also the
compromise decree, they have divested their ownership. Now, they cannot claim that they
are entitled to have the benefits of the Tamil Nadu City Tenants Protection Act. Under the
circumstances, no question of ouster of jurisdiction of the Rent Controller would arise. What
is demised, as could be seen, is actually a building as envisaged under the provisions
of the Tamil Nadu Buildings (Lease and Rent Control) Act. Hence, the Rent Controller has
jurisdiction, and the appellate forum has taken an erroneous view.
(Para 22)
(B) Tamil Nadu Buildings (Lease and Rent Control) Act, 1960—Section 12—Rent
—Fixation of—Rent Controller considering factual position of building and location
fixed rent—Appellate authority reversed finding on ground that it was a vacant land—
Held, f inding of appellate Court not sustainable as there is evidence of building—Since
matter is too old hence High Court itself fixed rent instead of remanding matter.
It is a fit case where this Court can fix the fair rent for the reasons that originally, the
RCOP was filed in the year 1997, and the matter is pending for a decade. Now, the test
would be whether sufficient materials are available before this Court to fix the fair rent and
not to make a remand therefor. It remains to be stated that before the appellate forum, no
further materials were available. Even if it is remitted back to the appellate forum, it could
fix the fair rent only on the materials available and nothing more. Under the
circumstances, this Court is of the opinion that sufficient materials are available before this
Court, and in order to avoid the avoidable delay and further litigation between the parties, it
would be fit and proper to fix the fair rent here itself. While the petitioners filed the petition
before the Rent Controller, they sought for fixation of fair rent at Rs.3,45,494.57; but, the
Rent Controller fixed it at Rs.2,59,217/-. The appellate forum did not go into this question.
Admittedly, the property is situated in Mount Road, Madras, and it is a commercial
locality where number of nationalised banks and commercial enterprises are situated around.
The property has got an extent of 14 grounds and 1116 sq. ft. Under the circumstances, the
Rent Controller has taken into consideration these facts along with the necessary factor in
order to fix the fair rent at Rs.2,59,217/-. Now, at this juncture, it is pertinent to point out
that when this was fixed by the Rent Controller, the valuation of the property namely Rs.35
lakhs per ground, was taken into consideration. After a period of 10 years, it comes for a
decision. Needless to say that the property value would have raised number of times.
However, there cannot be any impediment for fixing the original quantum what was fixed by
the Rent Controller at Rs.2,59,217/-. Under the circumstances, the order of the Rent
Controller is restored. (Paras 24, 25)
Case law.—1975 (1) MLJ 16; 1976 (1) MLJ 193; 1980 (II) MLJ 143; 1980 (1) SCC
290; 100 L.W. 86; 1971 (1) MLJ 266.
Counsel.—Mr. S.B.S. Raman, for Mr. S.S. Trivedi, for the petitioners; Mr. A.
Tamilvanan, for the respondents.
JUDGMENT
 M. CHOCKALINGAM, J.—This revision has arisen from the judgment of the Rent
Control Appellate Authority, namely the VIII Judge, Court of Small Causes, Madras, in RCA
No.336 of 2001 whereby the order of the Rent Controller namely the XI Judge, Court of
Small Causes, Madras, in RCOP No.665 of 1997, a petition for fixation of fair rent, was
reversed, and the petition was dismissed. Challenge is made by the landlords herein on the
order of the appellate authority.
2. The Court heard the learned Counsel on either side.
3. The said RCOP was filed by a trust called Hajee Sir Ismail Sait Wakf Estate, by its
Trustees alleging that the property more fully described in the Schedule, annexed to the
petition, belonged to the trust; that the respondents are the tenants in respect of the premises
along with the land mentioned therein; that they have been making a payment of Rs.3,000/-
as rental; that subsequently, there was a registered lease deed entered into on 9.8.1974; that
they have been carrying on a Cinema Theatre; that originally, there was an application filed
for fixation of fair rent; that one of the respondents therein died; that an application to add the
legal representatives was filed; that both the applications were dismissed; that since that
application was not decided on the merits of the matter, it would not operate as a res-
judicata, and thus, the instant petition could be maintained; that the provisions of the Tamil
Nadu Buildings (Lease and Rent Control) Act are applicable to the premises in question; that
the area covered by RCC roof is 6954.5 sq. ft.; that the area covered by AC Sheet roof is
8578.13 sq. ft., and the area covered by Tiled roof is 111 sq. ft.; that taking into consideration
the cost of the land per ground of 2400 sq. ft. at Rs.37.50 lakhs and also taking into
consideration the value of the property and the other material factors as required under the
provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, the fair rent could be
Rs.3,45,494.57 per mensem, and hence, it was to be fixed.
4. The first respondent herein namely fourth respondent in the RCOP, was the person
who really contested the petition among others, stating that he was in management of the
entire property; that there was a lease deed entered into between the parties; that originally
J.H.Irani, the father of the first respondent, entered into a lease deed on 17.2.1943; that it was
only in respect of the vacant site including the land in relation to the subject-matter; that it
was for a period of 21 years from 1940; that in 1961, it was extended for a further period of
10 years, and thus, it came to an end in 1971; that certain clauses were included in the lease
deed, which were contrary to the actual state of affairs; that they were expropriatory in
nature; that it was actually included only by way of undue influence and coercion in order to
get the same executed by the lessee; that the lessee under threat of immediate eviction, had
no other go but to subscribe to the lease deed; that in 1948, J.H.Irani died leaving behind
him the legal heirs namely wife and three sons including the first respondent, and two
daughters also; that now, it is under the management of the first respondent; that the
petitioners called upon the heirs of the said Irani to surrender possession of the theatre in
pursuance of the clauses referred therein; but, the heirs have actually refused; that
pursuant to the negotiations that took place between the parties, the landlord filed C.S.No.69
of 1972 on the file of this Court, for recording a compromise for continuation of lease; that a
consent order was also passed on 9.8.1974, wherein it is found that the Theatre is also
included as a subject-matter of the lease; but, this was actually done only for the purpose of
continuation of the lease; that further, at no point of time, the possession of the property
was surrendered; but, it continues to be with the lessee; that apart from that, pending the
same, Section 12 of the Tamil Nadu City Tenants Protection Act was amended whereby the
conditions stipulated in any lease deed with reference to the ownership of the building put up
by the tenant, would be invalid, and the tenant will continue to be entitled to the benefits of
the Act; that originally, the lease was in respect of the vacant site only; that as could be seen
from the documents entered into between the parties, the construction was made by Irani and
other respondents; that under the circumstances, no petition for fixation of fair rent could
be entertained; that apart from that, in view of the factual position, the petition itself
was not maintainable, and hence, it was to be dismissed.
5. The learned Rent Controller took the matter for enquiry and passed an order
whereby the fair rent was fixed at Rs.2,59,217/-. Aggrieved over the said order, the
respondents took it on appeal in RCA referred to above. The appellate forum took the view
that the petition could not be maintained since the property which was leased out, was only a
vacant site, and hence, the Rent Controller has no jurisdiction to entertain the petition, and
allowed the appeal dismissing the RCOP filed by the revision petitioners herein. Under the
circumstances, this revision has arisen before this Court.
6. In support of the revision petition, the learned counsel for the petitioners would
submit that in the instant case, the Rent Controller on appreciation of the documentary
evidence and the circumstances, has come to the correct conclusion that the property which
was leased out, was not only a vacant site, but also the building and the premises as
envisaged under the Tamil Nadu Buildings (Lease and Rent Control) Act; that under the
circumstances, it is a fit case where the Rent Controller had got jurisdiction, and it has also
fixed the fair rent after taking into consideration the relevant factors as required under the
Act, and hence, the order should not have been reversed by the appellate forum; that the
appellate forum while allowing the appeal, has not taken into consideration that even as per
the documents entered into, it would be quite clear that what was originally leased out, was
not only a vacant site, but also the English warehouse which was situated in the building, and
this itself would suffice to conclude that it was the premises as one required under the
provisions of the Act; that it is true that RCOP No.2415/85 was filed; but, the same was
dismissed along with the application to add the legal representatives of Irani; that it would be
quite clear that the said main RCOP was not decided on the merits of the matter, and thus, it
would not operate as a res-judicata; and that the appellate authority has not taken into
consideration the legal position, but has been carried away as if it would operate as
res-judicata.
7. Added further the learned Counsel that the Tamil Nadu City Tenants Protection Act
is not applicable to the present facts of the case; that all the rulings were placed before the
forum below; but, they have not been considered; that even R.W.1 has well admitted that the
English warehouse together with the vacant site was given; that this has completely escaped
the sight of the appellate forum; that in the instant case, there was a suit filed in C.S.No.69 of
1972 wherein a compromise was recorded between the parties; that the said compromise
would clearly indicate that the property what was leased out, was the Theatre along with the
buildings and all other structures there; that pursuant to the original lease deed, it was
continued; that after the lease period was over, the instant petition has been brought forth;
that added circumstance was that the tenants have also filed a suit in C.S.No.1215 of 1995 for
the purchase of the property which is now pending; that under the circumstances, neither
the provisions of the Tamil Nadu City Tenants Protection Act would apply, nor they could
claim that they are entitled to the benefits of the same; that on the contrary, the provisions
of the Tamil Nadu Buildings (Lease and Rent Control) Act are applicable in view of the
agreements entered into between the parties; and that under the circumstances, the appellate
authority has miserably failed to consider the above aspects of the matter.
8. The learned counsel would further add that in the instant case, the Rent Controller
has jurisdiction to entertain the petition and hence, passed an order fixing the fair rent; that if
this Court comes to the conclusion in the revision that the RCOP is maintainable, instead of
sending the matter to the appellate forum by remand for the purpose of fixing the fair rent
and also instead of driving the parties to agitate their case in future, it would be fit and proper
that it can be decided by this Court, and orders could be passed since sufficient materials are
available before this Court.
9. In support of his contentions, the learned counsel relied on the following decisions:
(i) 1975 (1) MLJ 16 (Aahu v. V.M. Palaniswamy Gounder);
(ii) 1976 (1) MLJ 193 (Haridas Girdharidas and others v. M.Varadaraja Pillai and
another);
(iii) 1980 (II) MLJ 441 (Chelladurai and another v. Paramanand Jindal);
(iv) (1980) 1 SCC 290 (Kewal Singh v. Lajwanti);
(v) 100 L.W. 86 (Sivaperumal v. NLS Seethalakshmi Ammal (Died) and two others);
and
(vi) 1971(1) MLJ 266 (A.Rangaswamy Naidu v. B.V.Venkatalakshmi Ammal and
another).
10. Contrary to the above contentions, the learned counsel for the respondents would
submit that in the instant case, the Rent Control Appellate Authority has rightly rejected
the claim of the revision petitioners; that as could be seen from the available
materials, what was originally leased out was only a vacant site; that even the English
warehouse which is mentioned in the lease deed of 1943, has been subsequently surrendered;
and that it would be quite clear that the alleged warehouse was not available in the
subsequent period. Added further the learned counsel that even those clauses were
added in the lease deed of 1943 because of the circumstances, and thus, it could not be given
effect to; that it is true that the revision petitioners have filed a suit in 1972, in which a
compromise has been entered into; that all the documents entered into between the parties,
and the compromise would also recite that what was leased out was only a vacant site; that
either the clauses found in the agreement, or the clauses in the decree would not bind the
party in view of Section 12 of the Tamil Nadu City Tenants Protection Act; that the
respondents who are the lessees and not tenants, are entitled to have the benefits of the Act;
that they have also filed a suit originally for purchase of the property; that the same is also
pending; and that under the circumstances, the appellate authority was perfectly correct in
taking into consideration the legal position and also by an elaborate and reasoned order,
found that what was given was only a vacant site and nothing more.
11. Added further the learned counsel that there was a clear admission by P.W.1 that
all the constructions have been made by the respondents; that under the circumstances, it
would be quite clear that the Rent Controller is ousted the jurisdiction; that in such
circumstances, no question of allowing the petition for fixation of fair rent would arise; that
the order of the Rent Controller was rightly set aside, and hence, the revision requires an
order of dismissal in the hands of this Court.
12. The Court paid its anxious consideration on the submissions made.
13. As could be seen above, it was a petition for fixation of fair rent by the landlord, a
private trust, against the respondents- tenants. The Rent Controller entertained the
petition since she was of the view that she has got jurisdiction to proceed with the matter for
the reason that what was leased out was the buildings and the premises as envisaged under
the Act, and on the materials available, she fixed the fair rent. The appellate forum reversed
the said decision and has taken the view that it was only a vacant site what was leased out;
that there was no superstructure at all, and under such circumstances, the Rent Controller has
no jurisdiction, and thus, the petition was not maintainable. In such circumstances, this
revision has arisen before this Court.
14. Now, the main question that would revolve upon in this revision would be whether
the property originally leased out, was the premises as put forth by the revision
petitioners/landlords, or a vacant site as put forth by the respondents/tenants. After looking
into the materials available including all the documents entered into between the parties, and
also after careful consideration of the rival submissions made, this Court is of the considered
opinion that the property in question is the buildings and the premises as described under the
provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act. The following
circumstances are noticed by this Court in order to hold so.
15. It is not in controversy that a lease deed was entered into by one J.H.Irani, the
father of the fourth respondent, and other respondents on the one part and the Trustees of
the private trust on the other part, on 17.2.1943. Clauses 3(d), (e) and (m) of the said lease
deed read thus:
“3(d) The lessee has at his own cost effected improvements to the buildings known
as the “English Ware House” and has also erected a pucca first class Talkie
House and buildings appurtenant thereto on the vacant plot hereby demised;
(e) All theatre or other buildings that have been erected or constructed by the lessee
and any other buildings that may be erected hereafter shall be maintained at the
lessee’s own cost in good and substantial repair and condition and shall at the
conclusion of the lease belong to and be delivered over to the lessors and the
lessee shall not be entitled to claim any compensation in respect of such theatre
and other buildings;......
(m) On the expiry of the lease period or sooner determination thereof, the lessee
shall deliver up to the lessors the buildings now existing or hereafter to be
erected by the lessee together with the lessors’ fixtures, in the main buildings
(other than the machinery, fixtures, fittings etc., mentioned in 3(f) supra and the
furniture brought on the demised property) at the lessee’s own cost in such a
state of repair and condition as shall be in accordance with the lessee’s
covenants hereinbefore mentioned.”
16. Originally, the lease was for 21 years from 1940 to 1961, and it was further
extended for a period of 10 years, which ended in 1971. A reading of the above clauses
would clearly indicate that what was originally leased out was not a vacant site, but along
with a warehouse. R.W.1 has categorically admitted that the property what was originally
leased out, would include a warehouse also in 1972. After the death of J.H.Irani in 1948,
these respondents have come into picture. The first respondent herein was also a party to the
proceedings thereafter initiated and pending between the parties. There was a suit filed by
the landlord in C.S.No.69/72 for recording a compromise for the continuation of the lease. It
is not a fact in dispute that the contesting respondent was also a party therein. On
9.8.1974, a consent decree came to be passed by this Court in the said suit, pursuant to which
a lease deed was entered into between the parties. It is clearly mentioned in Clauses 1, 3(a),
(d), (e) and 4(e) as follows:
“1. In consideration of the deposit herein mentioned and the rents hereinafter
reserved and the conditions herein contained and to be observed and performed
by the lessees, the lessors hereby demise unto the lessees by way of lease, and the
lessees hereby accept the lease of the casino theatre and the buildings and the
 premises of the extent of 14 grounds and 1116 sq. ft. coloured yellow in the plan
annexed hereto and more particularly described in the Schedule hereunder written
and referred to hereinafter as “the demised casino theatre, building and
premises” for a period of 15 years commencing from 1.1.1972 and terminating
with 31.12.1986 on a rent of Rs.3000/- per month....
3(a). The lessees shall pay to the lessor the monthly rent of Rs.3000/- (Rupees
Three Thousand only) for the entire period of lease, each month’s rent being
payable on or before the 10th of the succeeding month.
(d). The lessees shall permit the lessor and their agents at all reasonable times, after
previous notice in writing, to enter and view the state and condition of the
demised casino theatre buildings and premises, except during working hours.
(e). The lessees shall, at the conclusion of the lease on the expiry of the period of
lease, peacefully quit and deliver vacant possession of the demised casino
theatre buildings and premises to the lessors.
4(e). The lessors hereby grant the lessees the option of extending the lease for a
further period of 10 years from 1.1.1987 to 31.12.1996 on payment of rent of
Rs.3,500/- per month instead of Rs.3,000/- per month and otherwise on the same
term and conditions of lease as hereinbefore mentioned and the option shall be
deemed to be exercised by the lessees giving a notice in writing of their
intention to extend the lease at any time on or before 30.9.1996.”
17. A reading of the above clauses would clearly indicate that what was taken on lease
by the respondents herein as recorded in the consent decree, was the casino theatre and the
buildings and the premises having an extent of 14 grounds and 1116 sq. ft. At this juncture,
it remains to be stated that there is a clause as found therein that the lessee shall permit the
lessor and their agents at all reasonable times after a previous notice in writing, to enter and
view the state and conditions of the demised casino theatre, buildings and premises except
during working hours. This clause specifically would indicate that the lessors, who are the
landlords, were given a right to make inspection of the theatre and also the buildings and the
premises of casino theatre. It has been further agreed in the compromise that after the lease
period was over, the lessee shall peacefully quit and deliver vacant possession of the demised
casino theatre, buildings and premises to the lessor. It is not in controversy that the lease was
extended for a further period of 10 years therefrom, and now, the rent was also raised from
Rs.3,000/- to Rs.3,500/- on the same terms and conditions of lease. Thus, the contentions
raised by the learned counsel for the petitioners-landlords that what was leased out is actually
the casino theatre with buildings and the premises is thoroughly fortified by the clauses as
found not only in the original documents of lease entered into between the parties, but also in
the subsequent documents entered into which also culminated by way of a compromise
decree in C.S.No.69/72.
18. Now, the contention put forth by the respondents’ side that all the clauses which
were made in 1943, referred to above, were actually included by use of the undue influence
and coercion and also by compelled circumstances has got to be negatived for more reasons
than one. In the lease deed of 1943, the present respondents were not parties, and one
J.H.Irani and others were parties. The said J.H.Irani died in 1948. Till his life time, he never
questioned that the lease deed was entered into by coercion, undue influence and threat and
also by compelled circumstances, and thus, it was invalid by any one of the invalidating
factors now stated by the respondents. The earlier lease period made in the lease deed of
1943 was extended in 1961, and the same clauses have been reproduced. Had it been true
that such invalidating factors were present even in 1943, the respondents herein would not
have been parties for the extension of lease on the very same clauses. That apart, the strong
circumstance which stands in favour of the landlords and against the respondents-tenants is
the compromise that was entered into between the parties in C.S.No.69/72, wherein it has
been clearly found that what was leased out was the casino theatre and the buildings and the
premises thereon, which is situated in 14 grounds and 1116 sq. ft. Having been parties to
such a compromise decree, now, the respondents are estopped from contending that the
ownership of the property continues to be with them.
19. The learned counsel for the respondents relying on the evidence of P.W.1 in the
cross-examination that all the constructions were raised by the lessee during the pendency of
the lease, would submit that now, the petitioners cannot come forward with the case that it
belonged to them; that even the clauses therein are not available to them, and further, the
respondents are entitled to the benefits of the Tamil Nadu City Tenants Protection Act.
Attractive though these contentions at the first instance, they do not stand the scrutiny of law.
The first and foremost circumstance would be what was originally leased out was not only a
vacant site, but also a warehouse which fact is admitted by R.W.1. Secondly, even those
clauses continued to be in the next lease deed whereby the period was extended from 1961
for 10 years. That apart, in the compromise decree referred to above in C.S.No.69/72, it has
been clearly found what was demised was the buildings and the premises what are found in
the site. Added circumstance is the consideration for leasing out the property having an
extent of 14 grounds and 1116 sq. ft. in a place like Mount Road, Madras, and the paltry
rental of Rs.3,000/- for a longer period would be only a consideration for the tenants and to
leave the ownership of the property with the landlord irrespective of whatever being
constructed therein. Taking into consideration that situation only, the tenants should have
entered into a compromise as found in C.S.No.69/72. Having been parties to such a
compromise, now, they cannot question the same. What is evident is that they have divested
their ownership, though they raised such buildings and premises even after taking the
property into lease. Having divested the title, they cannot now come forward to claim that
they are entitled to the buildings and premises, and the revision petitioners are only entitled to
vacant site. This, in the considered opinion of this Court, cannot be countenanced.
20. The contention of the learned counsel for the respondents that they continue to be
in possession of the property is a fact not in dispute. It is true that P.W.1 has given evidence
that all the superstructures have been raised by the respondents herein. It is not disputed
by the revision petitioners that the buildings were erected by the opposite party, and it has
also been assessed to tax thereafter. Now, the point for consideration would be whether what
was leased out originally was a vacant site only and whether the title in respect of the
buildings and the premises found in the site, continues to be with the tenants or divested
thereafter. This has got to be found in negative in view of the reasons stated above.
21. The next contention by the learned counsel for the respondents that they are
entitled to have the benefits of Section 12 of the Tamil Nadu City Tenants Protection Act;
that even if a clause found in the decree or in the agreement would not be operative or in
force, and hence, they should have the benefits of it; and that even those clauses would be of
no effect at all has got to be rejected since it will not stand the scrutiny of law. In order to
have the benefits of the Tamil Nadu City Tenants Protection Act, it would not be sufficient to
show that a tenant has erected the superstructures on the demised land, but he must show that
he continued to be the owner thereof on the date of making the claim over the same. In the
instant case, what was leased out at the earliest was only a warehouse along with the vacant
site. That itself would be sufficient to record a finding that what was leased out was not only
a vacant site, but also the premises. Even assuming that the possession of the English
warehouse was subsequently surrendered, and the superstructures have been subsequently
raised in the demised land by the tenants, and if they are to claim the benefits under the Tamil
Nadu City Tenants Protection Act, the mere fact that they erected the constructions on the
demised land would not be sufficient, but they must be able to show that they continued to
have the ownership or continued to maintain the ownership over the property till they make
the claim. In the instant case, it would be quite evident that when they entered into a
compromise decree in 1972, they have clearly mentioned therein that what was demised or
leased out was the buildings and the premises situated in 14 grounds and 1116 sq. ft. Thus,
it would be quite evident that they have divested the ownership and title over the property. In
such circumstances, it would be futile on the part of the respondents-tenants to contend that
they are entitled to have the benefits of the Tamil Nadu City Tenants Protection Act, and the
said contention requires rejection.
22. From the very commencement till the proceedings are pending, it would be
quite evident that what was leased out originally was a warehouse, and subsequently
constructions were made by the tenants; but, by entering into all the agreements and also the
compromise decree, they have divested their ownership. Now, they cannot claim that they
are entitled to have the benefits of the Tamil Nadu City Tenants Protection Act. Under the
circumstances, no question of ouster of jurisdiction of the Rent Controller would arise. What
is demised, as could be seen, is actually a building as envisaged under the provisions of the
Tamil Nadu Buildings (Lease and Rent Control) Act. Hence, the Rent Controller has
jurisdiction, and the appellate forum has taken an erroneous view. Accordingly, the order of
the appellate authority has got to be set aside and the order of the Rent Controller be restored
in that regard.
23. The next question would be whether fair rent could be fixed for the property as one
done by the Rent Controller or whether the matter could be remitted back to the appellate
forum since it has not decided that question, but has decided only the question of
jurisdiction and found that the petition was not maintainable. The learned counsel for the
revision petitioners would submit that in the instant case, it has got to be done here itself,
since the parties are litigating for a longtime, and sufficient materials are available before
this Court. In answer to the above, it is contended by the learned counsel for the respondents
that if the Court comes to the conclusion that the Rent Controller has got jurisdiction, the
matter could be well remitted to the appellate forum for the purpose of fixation of fair
rent.
24. After hearing the counsel on either side on this aspect, and looking into the
materials available, this Court is of the considered opinion that it is a fit case where this Court
can fix the fair rent for the reasons that originally, the RCOP was filed in the year 1997, and
the matter is pending for a decade. Now, the test would be whether sufficient materials are
available before this Court to fix the fair rent and not to make a remand therefor. It remains
to be stated that before the appellate forum, no further materials were available. Even if it is
remitted back to the appellate forum, it could fix the fair rent only on the materials available
and nothing more. Under the circumstances, this Court is of the opinion that sufficient
materials are available before this Court, and in order to avoid the avoidable delay and further
litigation between the parties, it would be fit and proper to fix the fair rent here itself. While
the petitioners filed the petition before the Rent Controller, they sought for fixation of fair
rent at Rs.3,45,494.57; but, the Rent Controller fixed it at Rs.2,59,217/-. The appellate forum
did not go into this question.
25. Admittedly, the property is situated in Mount Road, Madras, and it is a
commercial locality where number of nationalised banks and commercial enterprises are
situated around. The property has got an extent of 14 grounds and 1116 sq. ft. Under
the circumstances, the Rent Controller has taken into consideration these facts along with the
necessary factor in order to fix the fair rent at Rs.2,59,217/-. Now, at this juncture, it is
pertinent to point out that when this was fixed by the Rent Controller, the valuation of
the property namely Rs.35 lakhs per ground, was taken into consideration. After a
period of 10 years, it comes for a decision. Needless to say that the property value would
have raised number of times. However, there cannot be any impediment for fixing the
original quantum what was fixed by the Rent Controller at Rs.2,59,217/-. Under the
circumstances, the order of the Rent Controller is restored. The quantum of fair rent as
fixed by the Rent Controller is confirmed.
26. Accordingly, this civil revision petition is allowed. No costs.
Revision allowed.

[2007 (2) TNCJ 797 (Mad)]

MADRAS HIGH COURT
BEFORE:
F.M. IBRAHIM KALIFULLA AND S. TAMILVANAN, JJ.
UNION OF INDIA AND ANOTHER ....Petitioners
Versus
G. CHANDRAN AND ANOTHER …Respondents
[W.P No. 13842 of 2002 and W.P.M.P. No. 18699 of 2002, decided on 12 June, 2007]
th

Constitution of India, 1950—Article 226—One Time Bound Promotion Scheme—

Benefit of—Grant of under misconception—Withdrawal of—Benefit restored to the
right person from 6.12.1996 in the shortfall vacancy—Legality of—Action in having
restored the benefit of O.T.B.P to the senior by proceeding dated 16.3.1999 is well
justified—Equally withdrawal of such benefit from 6.12.1996 by separate order cannot
be faulted—Recovery of amount—First respondent was not in any way responsible for
the benefit of the O.T.B.P granted to him much earlier i.e., from 6.12.1996—While he
was actually entitled to said benefit only from April, 2001—Monetory gain by virtue of
wrong extension of the O.T.B.P scheme cannot be permitted to be recovered—Direction
issued not to recover of higher benefits extended to the first respondent between
6.12.1996 and April, 2001. (Paras 7 to 11)
Counsel.—Mr. S. Udayakumar, SCGSC, for the petitioners; M/s P.Rajendran, P.
Mohan Raj, for the respondents.
JUDGMENT
F.M. IBRAHIM KALIFULLA, J.—The Union of India represented by its Chief General
Manager(S), Telecommunications, Tamil Nadu Circle, Chennai-600 002 and the Assistant
General Manager(S), Telecommunications, Tamil Nadu Circle, Chennai-600 002, are the
petitioners. The challenge in the writ petition is to the order of the Central Administrative
Tribunal passed in O.A.No.636 of 2000, dated 4.4.2001.
2. The first respondent was the applicant before the Tribunal. The issue relates to grant
of promotion for the post of Section Supervisor (Operative) under “One Time Bound
Promotion” Scheme (hereinafter referred to as ‘OTBP’) with effect from 6.12.1996. As a
matter of fact, one Thiru.A.Periasamy who was senior to the first respondent, opted to go
under the restructured cadre under the OTBP scheme. Irrespective of the exercise of such
option, by virtue of Circular No.27-4/87-TE-II (2), dated 16.10.1990, even the officials
absorbed in the restructured cadre were entitled to draw pay in the OTBP Scheme in the
previous cadre if it is advantageous to them.
3. As per the proceedings dated 26.3.1990, by referring to certain orders of the
Supreme Court, it was announced by the Chief General Manager of Telecommunications that
in the shortfall vacancies of Scheduled Castes and Scheduled Tribes, the minimum period of
service of 16 years for grant of the OTBP promotion need not be insisted, if there were
insufficient number of SC/ST officials with 16 years of service and the officials who have
completed 10 years of service can be considered.
4. In the light of the said Circular dated 26.3.1990, it became imperative that
Thiru.A.Periasamy who had by then, namely as on 6.12.1996, had completed 10 years of
service and who belongs to SC cadre, was eligible to be considered for the grant of OTBP
benefit, even though he opted to go under the restructured cadre. Unfortunately, he was not
extended the said benefit on 6.12.1996, instead, the first respondent was granted the said
benefit by order dated 12.6.1997. It was true that the first respondent had 11 years of
service and since he also belonged to SC cadre, he was granted the benefit of OTBP under
the wrong impression that Thiru.A.Periasamy had opted for restructured cadre and failed to
exercise his option within the stipulated time. It is because of the above misconception of the
Department, a circular came to be issued on 28.10.1998, by which, a review came to be made
of the earlier promotions granted under the OTBP scheme, which ultimately resulted in the
passing of the order dated 16.3.1999, by which the OTBP granted to the first respondent
came to be withdrawn, which benefit was extended to Thiru.A.Periasamy by the proceedings
in Memo No.TSA/70-3/95, dated 16.3.1999. The benefit of OTBP was restored to the said A.
Periasamy with effect from 6.12.1996.
5. When the first respondent challenged the said proceedings dated 16.3.1999 issued to
him, withdrawing the benefit of OTBP granted to him in the letter dated 12.6.1997, the
Tribunal, by the order impugned in this writ petition, took the view that at best, the persons
who moved into the restructured cadre of Senior T.O.A., would only be entitled for stepping
up of the pay on par with that of their juniors who happened to draw a higher pay scale by
virtue of the grant of OTBP.
6. When we heard Mr. Udayakumar, learned SCGSC with particular reference to the
proceedings of the petitioners dated 16.10.1990, we are convinced that Thiru.A.Periasamy
was lawfully entitled for the grant of OTBP in the shortfall vacancy by virtue of the fact that
as on 6.12.1996, he was fully eligible to get the OTBP benefit as against the first respondent
who was far junior to him in the cadre of T.O.A. Unfortunately, it was not granted to
Thiru.A.Periasamy on 6.12.1996, while the first respondent was granted the said benefit by
the mistaken impression that a person who opted to go under the restructured cadre, was not
entitled to be considered in the shortfall vacancy. Such a misconception of the petitioners
had resulted in the deprival of the benefit of OTBP to Thiru. A. Periasamy, who was lawfully
entitled for the said benefit by virtue of the decision of the Supreme Court, as has been
referred to by the petitioners themselves in their communication dated 26.3.1990. It was only
in the communication dated 28.10.1998, the petitioners decided to review the earlier cases
and set right the mistake committed by them. Thereafter, by proceedings dated 16.3.1999,
the grant of OTBP to Thiru.Periasamy was restored as from 6.12.1996 and the extension of
the said benefit to the first respondent as from 6.12.1996 was withdrawn by separate
communication of the same date of 16.3.1999.
7. Having regard to the above referred to facts, while no fault can be found with the
action of the petitioners in having restored the grant of OTBP benefit to Thiru.Periasamy as
from 6.12.1996 and also withdrawal of the said benefit from that date to the first
respondent, who fortunately got the benefit from April 2001, we are of the considered view
that the conclusion of the Tribunal in stating that the petitioners should have ordered only for
stepping up of the pay of the senior Thiru.A.Periasamy on par with the pay of the first
respondent, is not proper, since, as senior, Thiru.A.Periasamy ought to have been extended
the benefit of OTBP as from 6.12.1996 in the shortfall vacancy and extension of the said
benefit to the first respondent from 6.12.1996 was not proper, and therefore, it was not a
mere case of setting right the anomaly by stepping up of the pay of Thiru.A.Periasamy on par
with that of his junior, namely the first respondent.
8. Therefore, the action of the petitioners in having restored the benefit of OTBP to
Thiru.A.Periasamy by proceedings dated 16.3.1999, is well justified. Equally, withdrawal of
the said benefit as from 6.12.1996 to the first respondent by separate order dated 16.3.1999,
cannot also be faulted.
9. In the circumstances, we only feel that since the first respondent was not in any
way responsible for the benefit of the OTBP granted to him much earlier i.e., from 6.12.1996,
while he was actually entitled for the said benefit only from April 2001, whatever
monetary gain enjoyed by him between 6.12.1996 and April 2001 by virtue of the wrong
extension of the OTBP scheme during that period, cannot also be permitted to be
recovered from the first respondent, even though the subsequent order dated 16.3.1999
withdrawing the said benefit to the first respondent, would result in revision of the seniority
and other consequential benefits of the first respondent vis-a-vis Thiru.A.Periasamy, as a
sequel to the passing of the withdrawal order dated 16.3.1999 as well as restoration of OTBP
scheme to Thiru.A.Periasamy as from 6.12.1996.
10. Therefore, while setting aside the impugned order of the Tribunal, we however
direct the petitioners not to make any recovery of higher benefits extended to the first
respondent between 6.12.1996 and April 2001 on which date the first respondent was validly
granted the benefit of OTBP scheme.
11. The writ petition stands allowed with the above direction to the petitioners. No
costs. W.P.M.P. is closed.
Petition allowed.