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2013 DIGILAW 1696 (MAD)

M. Ashok Kumar v. N. Janarthana Mudaliar

2013-04-18

G.RAJASURIA

body2013
JUDGMENT 1. These second appeals are focused by D5 and D6, animadverting upon the common judgement and decrees dated 20.10.2011 passed by the District Court No.2, Kanchipuram, in A.S.No.37/2010 and Cross appeal No.5 of 2001, reversing the judgement and decree dated 19.12.2008 passed by the Sub Court, Kanchipuram, in I.A.No.341 of 2007 in O.S.No.261 of 1997, which was one for declaration and for recovery of possession. 2. The parties, for the sake of convenience, are referred to here under according to their litigative status and ranking before the trial Court. 3. A re'sume' of facts absolutely necessary for the disposal of this second appeal would run thus: (i) The plaintiffs filed the suit seeking the following reliefs: "a) to declare the plaintiff as sole trustee to Annu Mudaliar's Trust. b) to direct the defendants or such of the defendants who are found to be in possession of the suit property to deliver possession of the suit property to the plaintiff; c) to direct the 1st defendant to render accounts from the date of death of Nataraja Mudaliar till the death of her delivery of possession to the plaintiff; d) to direct the defendants 2 to 12 to pay the damages to the trust from the date of plaint till the date of delivery of possession of the suit property. e) to direct the defendants to pay the costs of the suit to the plaintiff." (extracted as such) citing four items as suit properties, as against the defendants on various grounds. (ii) The gist and kernel of the plaint averments would run thus: a) The properties described in the schedule of the plaint herein happened to be the 'C' schedule of the plaint in the previous suit O.S.No.114 of 1971 and the matter in the previous suit litigated up to High Court, wherein this Court held that the suit properties herein, described in 'C' schedule therein, were the trust properties. (b) However, Nataraja Mudaliar-D1 in the suit O.S.No.114 of 1971, after the disposal of the matter by the High Court, alienated/encumbered the 'C' scheduled properties. (c) The plaintiffs would contend that they are the legal heirs of Nataraja Mudaliar as they happened to be the hereditary trustees and that they are entitled to administer the trust and also retrieve the trust property from the defendants, wherefore they filed the suit, challenging and impugning the alienations/encumbrance in respect of the suit properties. (c) The plaintiffs would contend that they are the legal heirs of Nataraja Mudaliar as they happened to be the hereditary trustees and that they are entitled to administer the trust and also retrieve the trust property from the defendants, wherefore they filed the suit, challenging and impugning the alienations/encumbrance in respect of the suit properties. (iii) Per contra, D5, D9, D10 and D15 separately filed the written statements. However, the common defence that could be discerned and understood from the written statements would be to the effect that Nataraja Mudaliar had absolute right to alienate and encumber the suit properties in any manner as per the 'Will' executed by the testator-Annu Mudaliar. (iv) Along with the filing of the written statement by D5, D9, D10 and D15,D5 and D6 filed the I.A.No.341 of 2007 under Order 7 Rule 11 of C.P.C. with the following prayer: "to reject the plaint as the plaint had failed to disclose cause of action and had no cause of action to maintain the suit, under the provisions of Order 7, Rule 11 and Sec.151 of C.P.C.in the interest of justice." (v) D5 and D6 also filed I.A.No.343 of 2007 under Order 14(1)(2) and Section 151 of CPC, seeking the following relief: "to frame the preliminary issues viz., 1) Whether the plaint is disclosing any cause of action to sue? 2) Whether there was no cause of action? And 3) Whether the suit is not liable to be rejected under the provisions of Order 7 Rule 11 and Sec.151 of C.P.C.? (vi) Counters were filed. (vii) Ultimately the trial Court allowed the I.A.No.341 of 2007 filed under Order 7 Rule 11 of C.P.C., and rejected the plaint itself, and dismissed the I.A.No.343 of 2007. (viii) As against the order passed in I.A.341 of 2007 filed under Order 7 Rule 11 of C.P.C. the plaintiffs preferred the appeal A.S.No.37 of 2010 and the defendants preferred the cross-appeal No.5 of 2011 and both were heard jointly and by a common judgement, the first appellate Court allowed the appeal preferred by the plaintiffs and dismissed the cross-appeal filed by the defendants and the net result, as per the first appellate Court, is that the trial of the suit should be proceeded with as per law. 4. 4. Challenging and impugning the common judgement of the first appellate Court in the appeal as well as in the cross-appeal these two second appeals have been focussed by D5 and D6 more or less on the same grounds and also suggesting the following substantial questions of law: "1. Whether the lower appellate Court had committed a jurisdictional error in not disposing of the appeal in terms of Order 7 Rule 11 of C.P.C while it had remanded back the appeal for taking evidence on issues framed by it. 2. The lower appellate Court had no jurisdiction to traverse beyond the scope of the Order 7 Rule 11 of CPC and it should have restricted the appeal only as to find out whether the plaint had disclosed cause of action and whether the suit is barred by any law much less U/s.38 r/w.108 of the HR & CE Act and therefore the judgement and decree of the lower Court is liable to be set aside? (extracted as such) 5. On hearing both sides, I thought of formulating the following substantial questions of law, to the knowledge of both sides: "(i) Whether the first appellate Court was justified in giving a specific finding in its judgement relating to the merit of the case, instead of restricting its discussion concerning the applicability of Order 7 Rule 11 C.P.C. only? (ii) Whether there is any perversity or illegality in the order passed by the first appellate Court?" 6. A thumbnail sketch of the arguements as put forth on the side of the appellants/defendants 5 & 6 would run thus: (i) The suit itself is nothing but an abuse of process of law in view of Section 38 read with Section 108 of the HR and CE Act. (ii) A mere reading of the above provisions would show that the civil Court has got no jurisdiction with regard to the specific endowments. (iii) The plaint averments would disclose and delineate as though some specific endowments were created as per the 'Will' of the testator, namely Annu Mudaliar; While so, it is open for the alleged trustee to petition the authorities under the HR & CE Act and seek for retrieval of the properties etc. (iii) The plaint averments would disclose and delineate as though some specific endowments were created as per the 'Will' of the testator, namely Annu Mudaliar; While so, it is open for the alleged trustee to petition the authorities under the HR & CE Act and seek for retrieval of the properties etc. Instead of invoking the provisions of the HR & CE Act, such a suit was filed and it ought to have been stuck down, invoking the power of the Court under Order 7 Rule 11 of C.P.C. 7. The learned counsel for the defendants also has drawn my attention to the recitals in the 'Will' as well as the judgement in the previous litigation and attempted to buttress and fortify his contention. 8. Whereas in a bid to slap down and pulverise the arguments as put forth on the side of the appellants/defendants, the learned counsel for the respondents/plaintiffs would advance his arguement, the gist and kernel of the same would run thus: (i) In the previous litigation in O.S.No.169 of 19974, this Court, vide judgement dated 29.7.1977, held that the 'C' scheduled properties therein which constituted the suit properties herein, happened to be the trust properties, however, D1-Nataraja Mudaliar, who was very much bound by the judgement of the Division Bench of this Court in the previous litigation, throwing to winds, simply alienated and encumbered the very same 'C' schedule properties therein, described as the suit properties herein, and thereby left the trust in the lurch and as on date there is no trust property in the hands of the plaintiffs who are the legal trustees of the trust created by the testator Annu Mudaliar as per his 'Will'. (ii) A civil suit could rightly be filed by a trustee in order to get his status declared and also retrieve the trust properties. There is one choultry involved in the description of suit properties and such a choultry, even by a phantasmagorical thoughts, cannot be alienated. (iii) Similarly the other items of the suit properties also could not have been validly sold by Nataraja Mudaliar because he was bound as a trustee to adhere to the principle 'once a trust property, always a trust property', and maintain those properties, but he proved himself a scourge to the welfare of the trust. As such, the suit filed should not have been summarily dismissed. 9. As such, the suit filed should not have been summarily dismissed. 9. Both the substantial questions of law are taken for discussion, as they are interwoven and interlinked, interconnected and entwined with each other. 10. I would like to refer to the following precedent emerged in respect of Order 7 Rule 11 of C.P.C. 2012(4) CTC 308 – THE CHURCH OF CHRIST CHARITABLE TRUST AND EDUCATIONAL CHARITABLE SOCIETY, represented by its Chairman vs. PONNIAMMAN EDUCATIONAL TRUST, represented by its Chairperson/Managing Trustee. 11. A mere running of the eye over the above precedent would exemplify and demonstrate that summarily rejecting the plaint, the case should be brought within the parameters of the ingredients as found embedded in Order 7 Rule 11 of C.P.C. 12. Here on the one hand Janarthana Mudaliar-the plaintiff, during his life time, claiming to be the son of Nataraja Mudaliar as well as the hereditary trustee, highlighted certain facts in the plaint and those are all really involving complicate factual as well as legal ramifications. 13. The defendants herein placing reliance on the recitals in the 'Will' would try to highlight that second item in the 'A' schedule described in the 'Will' could be alienated by Nataraja Mudaliar and while so, Nataraja Mudalar's son Janarthana Mudaliar, and that after janarthana Mudaliar, his legal heirs, cannot impugn the same and if at all they are having any case, they should approach only the authorities under the HR & CE Act. 14. Without finally deciding the said issue, I would like to point out that civil status of a person could be adjudged by a Judge. Here, indubitably and indisputably, the item No.1 found described in the 'A' schedule of the 'Will' would refer to the Choultry. The testator dedicated that property as a choultry and according to the wish and will of the testator that should be maintained by his descendants as hereditary trustees. As such, it is crystal clear that the said choultry should not be alienated. Before me also the defendants have not ventured to argue that such choultry is alienable. The testator dedicated that property as a choultry and according to the wish and will of the testator that should be maintained by his descendants as hereditary trustees. As such, it is crystal clear that the said choultry should not be alienated. Before me also the defendants have not ventured to argue that such choultry is alienable. However, the defendants would attempt to argue, by placing reliance on the recitals in the 'Will', that the second item in the 'A' schedule in the Will, according to them, comprised of three properties, namely, one house, one shop and one thottam, which could be alienated by Nataraja Mudaliar and his brother either jointly or after partitioning between them. According to the defendants, a charge alone, so to say, a specific endowment alone is attached to those properties and there is no question of challenging the alienability of those properties. 15. Whereas, the learned counsel for the respondents/plaintiffs, by placing reliance on the Division Bench judgement of this Court dated 29.7.1977 passed in O.S.No.169 of 1974, which emerged in the earlier litigation, would canvas his case to the effect that once a property is adjudged as a trust property, inalienability is attached to it. There is no question of making any distinction by pointing out that only some contribution should be made by the holder of those properties and that he could alienate, would arise. 16. No doubt, these points are relating to mixed question of law and fact. Necessarily these points should be thoroughly gone into after entertaining evidence. On the one hand the defendants would try to put forth the point that the judgement rendered by this Court earlier would not operate as against them as they are the alienees, as they purchased the property from Nataraja Mudaliar based on the 'Will' and there is no specific embargo contemplated in the previous judgement of this Court relating to the capacity of Nataraja Mudaliar to alienate the said properties. 17. In my considered opinion these are all once again involving mixed question of law and fact and it is so obvious and axiomatic that Order 7 Rule 11 cannot be invoked to get the plaint rejected in limine. The trial Court obviously committed error in invoking Order 7 Rule 11 in rejecting the plaint. 17. In my considered opinion these are all once again involving mixed question of law and fact and it is so obvious and axiomatic that Order 7 Rule 11 cannot be invoked to get the plaint rejected in limine. The trial Court obviously committed error in invoking Order 7 Rule 11 in rejecting the plaint. However, the first appellate Court correctly set aside the order of the trial Court, while allowing the appeal and dismissing the cross-appeal. It appears, the first appellate Court delved deep into the factual issues and gave certain findings in its elaborate judgement and concerning such findings, I am of the considered view that the learned counsel for the appellants is right in his approach in highlighting that the appellate Judge should not have gone into all those details. 18. Accordingly, the substantial questions of law are answered as under: Substantial Questions of Law No.(i) & (ii) are decided to the effect that thefirst appellate Court was not justified in giving a specific finding in its judgement relating to the merit of the case. It should have restricted its discussion concerning the applicability of Order 7 Rule 11 of C.P.C. 19. The learned counsel for the appellants/defendants also would submit that they raised preliminary issues based on Section 38 read with Section 108 of HR & CE Act and at least that should be taken as a preliminary issue. 20. I would like to point out that as per Order 14 Rule 2 of C.P.C the power is vested with the Court to frame preliminary issues if at all the Court is satisfied about such framing of preliminary issues and as such, I do not want to express any specific opinion on that. But one fact is clear that this is a case wherein the plaint should not have been rejected invoking Order 7 Rule 11 of C.P.C. Hence, I would like to dismiss both these second appeals, after setting aside the findings on merits given by the first appellate Court. Accordingly it is ordered. The trial Court shall take up the matter and process the same as per law untrammelled and uninfluenced by any of the observations made by the first appellate Court or this Court in dismissing the second appeals and pass a reasoned judgement within a period of six months from the date of receipt of a copy of this judgement. 21. The trial Court shall take up the matter and process the same as per law untrammelled and uninfluenced by any of the observations made by the first appellate Court or this Court in dismissing the second appeals and pass a reasoned judgement within a period of six months from the date of receipt of a copy of this judgement. 21. The parties shall appear before the trial Court on 6.6.2013. 22. The second appeals are disposed of accordingly. No costs.