D. Ravi & Others v. S. Vellathan & Another — 1999 DIGILAW 790 (MAD)

Judgment : The first respondent/plaintiff filed a suit in O.S.No.25 of 1984 on the file of the Second Additional Subordinate Judge, Pondicherry, to pass a decree declaring that the plaintiff is the absolute owner of the immovable properties in the school premises and has absolute right in the administration of the school and in the school premises by name King Solomon English School at Kadirkaman, and for permanent injunction restraining the defendants 1 to 3 and their henchmen from interfering with the administration of King Solomon English Medium School at the schedule mentioned premises and for costs. 2. It is the case of the plaintiff that the said school was organised in the year 1981. On 7. 1981, the defendants 1 and 4 and one Chandrasekaran entered into an agreement to run the said school. Under the deed of partnership, the fourth defendant was appointed as the Manager and Correspondent of the school. On 18. 1981 the said Chandrasekaran retired from the partnership and subsequently on 29. 1982 the said partnership was dissolved by executing a document between the first and fourth defendant and thereby the fourth defendant has become the absolute owner of the properties and exclusive administrative control over the school. 3. The fourth defendant on 11. 1982 sold the ownership in the said institution to the plaintiff. Simultaneously, the fourth defendant had executed a release deed in favour of the plaintiff with respect to his executive right in favour of the plaintiff. Subsequently, the fourth defendant executed another document in favour of the first defendant, but it was obtained illegally under threat and duress of the defendants 1 to 3. According to the plaintiff, they have been in possession and control over the school and the first defendant with the help of defendants 2 and 3 try to trespass into the school and therefore the plaintiff has filed the suit. 4. The first defendant filed a written statement and contested the suit. It is the case of the first defendant that the fourth defendant while deciding to dissolve the partnership agreed to relinquish his right in favour of the plaintiff after getting Rs.2,500 and a document was also entered into to that effect. Ultimately, the first defendant purchased the right of the school on 13. 1983. On that basis, the first defendant claims that the plaintiff is not entitled for any relief sought for in the suit. Ultimately, the first defendant purchased the right of the school on 13. 1983. On that basis, the first defendant claims that the plaintiff is not entitled for any relief sought for in the suit. 5. The trial court framed as may as five issues and found that Ex.A-3, the dissolution deed in favour of the plaintiff is valid and the fourth defendant was the absolute proprietor of the school subsequent to the dissolution, the plaintiff is administering the school cannot be correct. Consequently, the trial court granted the decree only with reference to the declaration aspect and with respect of the prayer for injunction, the lower court rejected the suit. The trial court also gave liberty to the plaintiff to file a suit for recovery of possession. The defendants 1 to 3, aggrieved by the decree declaring the plaintiffs right to administer the school, the above appeal has been filed. 6. It is not in dispute that the plaintiff/1st respondent filed the suit for declaration and for injunction. Though the defendants took the specific plea that they are in management of the said school, the plaintiff did not take any steps to amend the prayer, namely, for recovery of possession. The plaintiff had taken the risk and ultimately the trial court found that the 1st defendant was in management of the said school at the time of filing the suit and so the plaintiff is not entitled for the decree for perpetual injunction, though the plaintiffs ownership over the movables and his right to administer the said school has been declared by the trial court. On that basis the learned counsel appearing for the appellants/defendants 1 to 3 has submitted that when the plaintiff/1st respondent had taken the risk and not amended the prayer for possession and when the trial court has come to the conclusion that the 1st defendant is in management of the said school, the trial court ought to have dismissed the suit as not maintainable as there is no prayer for possession. I find some force in the said argument. The plaintiff who is asking to declare his right to the office, and who is not in possession of the said school, by reason of Sec.42 of the Specific Relief Act, shall be non-suited. I seek support from the Full Bench decision of this Court in Kandaswami v. Vaghresam , (1941)2 MLJ. I find some force in the said argument. The plaintiff who is asking to declare his right to the office, and who is not in possession of the said school, by reason of Sec.42 of the Specific Relief Act, shall be non-suited. I seek support from the Full Bench decision of this Court in Kandaswami v. Vaghresam , (1941)2 MLJ. 463 : A.I.R. 1941 Mad. 822 (F.B.) (Leach, C.J.). In the said case, the plaintiff filed the suit for declaration that the 1st defendant is not entitled to be in office mentioned therein and is entitled to its headship or at least to be in charge of the math. The plaintiff sought for perpetual injunction against the 1st defendant. When the case was taken up, in view of the conflicting judgments of this Court in Rathnasabapathi Pillai v. Ramaswami Iyer Rathnasabapathi Pillai v. Ramaswami Iyer Rathnasabapathi Pillai v. Ramaswami Iyer , 20 MLJ. 301: 33 Mad. 452: 5 I.C. 630: 1910 M.W.N. 112 and in Swaminatha Iyer v. Ramier , 47 MLJ. 671: A.I.R. 1925 Mad. 421: 80 I.C. 1053 the matter was referred to Full Bench. The Full Bench approved the judgment in 33 Mad. 452, as rightly decided and held that the judgment in 47 MLJ. 671 was not. In the judgment in 33 Mad. 452, a trustee of a temple who had been ousted by his co-trustees sued for a declaration that his dismissal from the trusteeship was invalid and for an injunction restraining his co-trustees and the temple committee from interfering with the exercise of his rights as a trustee. No consequential relief is sought for in the nature of an order for possession against the co-trustees. While dealing with the said case, it was held that the suit not maintainable. While dealing with the same, the Full Bench of this Court has held as follows: “In the face of these decisions it is not feasible to accept the judgment in 47 MLJ. 671 in preference to that in 33 Mad. 452. Moreover it has to be borne in mind that it is not possible to separate the office from the properties which from the endowments of the office. This has been very clearly laid down by the Privy Council. In Gnanasambanda Pandarasannadhi v. Velupandaram , 10 MLJ. 29: (1900)23 Mad.271: 27 I.A. 69: 7 Mad. 452. Moreover it has to be borne in mind that it is not possible to separate the office from the properties which from the endowments of the office. This has been very clearly laid down by the Privy Council. In Gnanasambanda Pandarasannadhi v. Velupandaram , 10 MLJ. 29: (1900)23 Mad.271: 27 I.A. 69: 7 Mad. 671 (P.C.) which concerned the right to the office of trustee of a certain temple, Sir Richaro Couch in delivering the judgment of the Board said: ‘Their Lordships are of opinion that there is no distinction between the office and the property of the endowment’. This was emphasised by Lord Shaw in delivering the judgment of the Board in Ram Parkash Das v. Anant Das Ram Parkash Das v. Anant Das Ram Parkash Das v. Anant Das , 43 Cal. 707, A.I.R. 1916 P.C. 256: 33 I.C. 583 (P.C.) when referring to the position of a mahant Lord Shaw said: He sits upon the gadi, he initiates candidates into the mysteries of the cult; he superintends the wordship of the idol and the accustomed spiritual rites; he manages the property of the institution; he administers its affairs; and the whole assets are vested in him as the owner thereof in trust for the institution itself. In delivering the judgment of the Privy Council in Satish Chandra Giri v. Dharni Dhar Singha , I.L.R. (1940)1 Cal.266, A.I.R. 1940 P.C. 24: 185 I.C. 616: I.L.R. (1940) Kar.P.C. 47: 67 I.A. 32 (P.C) Mr.Jayakar, quoted this passage from the judgment of Lord Shaw and went on to say: The two capacities are thus closely intermingled and a proper and efficient discharge of the one depends on the control of the other. The mahanta must have authority over the funds and income of the institution to be able to discharge his religious duties efficiently, in conformity with the customary and traditional obligations of the office and to the satisfaction of those who who claim the benefit of the worship. He necessarily enjoys large patronage in the discharge of his religious functions. He cannot, in consequence, depend, for the due performance of such duties, on the mercy or caprice of another functionary, with separate or co-ordinate authority over the funds of institution. Any division of the two capacities would lower his prestige, as also impair the efficiency of his religious functions. He cannot, in consequence, depend, for the due performance of such duties, on the mercy or caprice of another functionary, with separate or co-ordinate authority over the funds of institution. Any division of the two capacities would lower his prestige, as also impair the efficiency of his religious functions. Here the appellant is endeavouring to separate the office from its endowments. This he clearly cannot do and as he is asking for a declaration of his title to the office and is not in possession of its properties he must by reason of Sec.42, Specific Relief Act, ask for possession. His failure to do so vitiates his suit. It may be regrettable that a person who has been ousted wrongly from an office and the control of the properties attached to it should be required to pay a court-fee based on the value of the properties before he can file a suit to remedy the wrong, but the court cannot take such hardship into consideration when deciding the effect of Sec.42, Specific Relief Act. When a court-fee fixed by the Court-Fees Act is unfair, it is for the Legislature to interfere. The court cannot do so. We consider that Rathnasabapathi Pillai v. Ramaswami Iyer Rathnasabapathi Pillai v. Ramaswami Iyer Rathnasabapathi Pillai v. Ramaswami Iyer , 20 MLJ. 301: 33 Mad. 452: 5 I.C. 630: 1910 M.W.N. 112 was rightly decided and that Swaminatha Iyer v. Ramier , 47 MLJ. 671: A.I.R. 1925 Mad. 421: 80 I.C. 1053 was not. Consequently the answer which we give to the reference is that the present suit cannot be maintained by reason of the fact that the plaintiff has filed to ask for possession of the math properties.“ 7. The Apex Court had an occasion to deal with similar issue in Ram Saran v. Ganga Devi , A.I.R. 1972 S.C. 2685 and in Vinay Krishna v. Keshav Chandra , A.I.R. 1993 S.C. 957 In these decisions, the Apex Court has come to the conclusion that where the defendant is in possession of some of the suit properties and the plaintiff in his suit does not seek possession of those properties but merely claims a declaration that he is the owner of the suit properties, the suit is not maintainable. 8. S.Thangaraj, J., in S.A.Nos.192 and 193 of 1984, and myself in S.A.No.931 of 1984 took the similar view. 8. S.Thangaraj, J., in S.A.Nos.192 and 193 of 1984, and myself in S.A.No.931 of 1984 took the similar view. In view of the above finding that the defendants 1 to 3 are in possession and enjoyment of the said school, the plaintiff/1st respondent should have taken steps to amend the plaint before the trial Court for recovery of possession. But, unfortunately, the plaintiff did not do so. When the suit itself is not maintainable, the question of giving liberty to the plaintiff to file a suit for possession will not arise. So, the plaintiff cannot take advantage of the relief given to him by the trial court to file a suit for possession and submit that the plaintiff can file a suit even now. Since the suit itself cannot be maintained in view of the abovesaid decided cases, I am not inclined to go into the question regarding the plaintiffs entitlement to file a suit for possession, as suggested by the trial court. 9. In view of the above reasonings, the judgment and decree of the trial court cannot be sustained. Hence they are set aside, on the ground that the suit is not maintainable. Consequently, this appeal is allowed. No costs.