JUDGMENT (Prayer in W.P. No. 28202 of 2019:- Writ Petition filed under Article 226 of the Constitution of India, 1950, praying to issue a Writ of Mandamus, directing the First Respondent to consider and pass orders on the petition filed by the Petitioner on 28.07.2019 sent by registered post to implead him as party to the Revision filed by Mrs. Kokila to the First Respondent on 17.02.2016 in pursuance of the order in W.P. No. 5636 of 2016 dated 16.02.2016 against the order in R.P. No. 179 of 2015 D2 passed by the Second Respondent. (Prayer in W.P. No. 29316 of 2019:- Writ Petition filed under Article 226 of the Constitution of India, 1950, praying to issue a Writ of Certiorarified Mandamus, quashing the notice dated 09.09.2019 issued by the Executive Officer Sri Muthukumarasamy Temple to a 'dead person' Kokila (who died on 09.09.2019) so as to evict the Petitioner without any notice to her as required under law but on the strength of an invalid notice dated 09.09.2019 by taking into account the order or 16.02.2016 passed by this Court in W.P. No. 5636 of 2016 and directing the authorities to maintain "status quo".) Common Order: Heard Mr. R.Shanmugam, Learned Counsel for the Petitioners, Mr. M.Maharaja, Learned Special Government Pleader appearing for the First to Fourth Respondents and Mr. R.Bharanitharan, Learned Counsel appearing for the Fifth Respondent and perused the materials placed on record, apart from the pleadings of the parties. 2. Since the facts involved in both Writ Petitions are same and they are inextricably connected with each other, they have been heard together and are disposed by this common order. 3. One A.Kokila was selling pooja items in the western side of the entrance of Arulmighu Sri Muthukumarswamy Devasthanam, Rasapa Chetty Street, Park Town, Chennai – 600 003 (hereinafter referred to as ‘the Temple’ for brevity and convenience) and had been paying the rent collected by the Trustees of the Temple for that purpose. 3. One A.Kokila was selling pooja items in the western side of the entrance of Arulmighu Sri Muthukumarswamy Devasthanam, Rasapa Chetty Street, Park Town, Chennai – 600 003 (hereinafter referred to as ‘the Temple’ for brevity and convenience) and had been paying the rent collected by the Trustees of the Temple for that purpose. The Fifth Respondent, viz., the Assistant Commissioner appointed by the Hindu Religious and Charitable Endowments Department of the Government of Tamil Nadu (hereinafter referred to as ‘the HR & CE Department’ for brevity and convenience), who was appointed as Fit Person to administer the affairs of the Temple in the place of the Board of Trustees, by notice dated 09.06.2014 issued to the said A.Kokila terminated the lease for the portion occupied by her in the entrance of the Temple as it was required for the use of the Temple and she was called upon to vacate from there within a period of 15 days from its receipt. Another notice dated 27.06.2014 was issued by the Fifth Respondent informing the said A.Kokila that since she had not vacated the portion occupied by her despite lapse of 15 days from 11.06.2014 when she acknowledged the receipt of the earlier notice dated 09.06.2014, she has been treated as ‘encroacher’ in terms of the explanation to Section 78 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (hereinafter referred to as ‘the TN HR & CE Act’ for brevity and convenience), and that action for her eviction therefrom would follow in due course. Proceedings were then initiated against the said A.Kokila under Section 78 of the TN HR & CE Act before the Third Respondent, viz., the Joint Commissioner, HR & CE Department, for evicting her from the space occupied by her of an extent of 135.63 sq.ft. in the western side of the entrance of the Temple. Accordingly, considering her objections and affording opportunity of personal hearing to her, the Third Respondent by order dated 30.09.2015 directed the said A.Kokila to vacate from the premises of the Temple, which was occupied by her, and it was also informed that in the event of her failure to comply within 15 days, the Fifth Respondent was required to carry out the eviction in accordance with Section 79(1) of the TN HR & CE Act. The said A.Kokila preferred Revision Petition under Section 21 of the TN HR & CE Act against that order before the Second Respondent, viz., the Commissioner, HR & CE Department, in which after examining all her contentions raised, by order dated 08.02.2016 that Revision Petition was dismissed with a condition that the space shall be utilized for common purpose and it would not be leased out or rented out to any person in future. 4. The Writ Petition in W.P. No. 5636 of 2016 was filed by the said A.Kokila challenging the aforesaid order passed by the Second Respondent, in this Court. Taking note of the alternative remedy by way of Revision under Section 114 of the TN HR & CE Act before the Government of Tamil Nadu available against that order, this Court by order dated 16.02.2016 disposed that Writ Petition directing status quo to be maintained as on that date for a period of two weeks and left it open to the said A.Kokila to file such Revision Petition along with a Petition for stay, and in such event, it was for the Government to consider the Petition for stay on merits and in accordance with law. 5. At this juncture, it has to be noticed here that the said A.Kokila died on 21.12.2016, but monthly payments towards damages for use and occupation of the premises belonging to the Temple were made on her behalf by one M.Saravanan, who is the Petitioner in W.P. No. 28202 of 2019, to the Fifth Respondent. However, no material has been produced to show that the said M.Saravanan had intimated the Fifth Respondent about the death of the said A.Kokila. 6. While the matter stood as narrated supra, the Fifth Respondent by notice dated 09.09.2019 sent an intimation to the said A.Kokila in compliance with the order dated 30.09.2015 passed by the Third Respondent stating that it was intended to take possession of the premises belonging to the Temple, in which she is found to be an encroacher, at 11.00 a.m. on 25.09.2019 following the procedure as per Section 79(1) of the TN HR & CE Act. 7. 7. The said M.Saravanan then filed the Writ Petition in W.P. No. 28202 of 2019 stating that on coming to know from the Temple Administration that there was earlier litigation relating to the premises initiated by the Fifth Respondent against the said A.Kokila, he has on 29.07.2019 sent a Petition by Registered Post for impleading himself as the Petitioner in the Revision Petition filed by the said A.Kokila before the First Respondent, and has sought for a direction to the Fifth Respondent to consider and pass orders on that Impleading Petition filed by him. He has also made an application in that Writ Petition for interim injunction restraining the Respondents from evicting him from that premises without deciding the Revision Petition filed by the said A.Kokila before the First Respondent in which he has sought to implead himself as the Petitioner. 8. When the matter came up for admission before this Court on 24.09.2019, it was informed by the Learned Counsel for the Fifth Respondent that the aforesaid notice dated 09.09.2019 sent to the same address furnished by the Petitioner in W.P. No. 28202 of 2019 in that Writ Petition has been returned unserved, and the Learned Counsel for that Petitioner requested that time may be granted to that Petitioner to vacate from the premises till 12.10.2019 and an affidavit of undertaking to that effect was filed by that Petitioner, which has been recorded, and the case was adjourned to 14.10.2019. 9. In the interregnum, the Petitioner in W.P. No. 29316 of 2019, viz., Logeshwari filed that Writ Petition through another Counsel stating that she was the adopted daughter of the said A.Kokila and after her demise, she has been in possession of the premises hereto occupied by her of an extent of 130 sq.ft. and claimed that except the extent of 30 sq. ft, the remaining 100 sq.ft. did not belong to the Temple and was part of the public road over which the Temple did not have any title, and challenged the validity of the notice dated 09.09.2019 sent by the Fifth Respondent to the said A.Kokila, who was a dead person, as nullity, so as to evict her without any notice in her name as required by law on the strength of the notice issued to the said A.Kokila. The said Writ Petition, which came for admission before the vacation sitting of this Court on 10.10.2019, was directed to be called on 14.10.2019. 10. This Court during the hearing on 14.10.2019 passed the following self-explanatory order:- “Learned Counsel appearing for the Fifth Respondent submits that after the order dated 24.09.2019 passed by this Court, the Petitioner did not voluntarily vacate from the shop by 12.10.2019 as undertaken by him in the affidavit dated 24.09.2019 filed in this Court. 2. When the matter is taken up for hearing today, a different Counsel has entered appearance for the Petitioner and represents that another Writ Petition in W.P. No. 29316 of 2019 has been subsequently filed by the daughter of the Petitioner challenging notice dated 09.09.2019 issued by the Fifth Respondent to the erstwhile Lessee, viz., A.Kokila, who was not alive at the time when the said notice was issued. However, the Learned Counsel submitted that the Petitioner is willing to surrender the possession in respect of 30 sq.ft. of shop area, which had been leased by the Fifth Respondent to the said A.Kokila and states that the key in respect of that portion has been handed over today to the Fifth Respondent. 3. Learned Counsel for the Fifth Respondent referring to the notice dated 10.07.2015 issued to the said A.Kokila states that she was required to vacate from the entire extent of 135.63 sq.ft. and that the entire extent of that portion, which belongs to the Temple, has been taken possession. He further submits that in compliance of the order dated 08.02.2016 in R.P. 149/2015 D2 passed by the Second Respondent, the existing temporary structures would be fully removed so that the space could be utilized for common purpose and a report would be filed on the action taken in this regard. Post the matter on 16.10.2019.” At the request of the Counsel, the matter which came up for hearing on 16.10.2019 was adjourned to 18.10.2019. 11. The Fifth Respondent has filed a report dated 18.10.2019 in which it has been stated as follows:- “4. This Hon’ble Court by recording the undertaking affidavit filed by M.Saravanan on 24.09.2019, granted time to vacate and hand over possession of the leased portion till 12.10.2019 and posted the case on 14.10.2019 for reporting compliance. 11. The Fifth Respondent has filed a report dated 18.10.2019 in which it has been stated as follows:- “4. This Hon’ble Court by recording the undertaking affidavit filed by M.Saravanan on 24.09.2019, granted time to vacate and hand over possession of the leased portion till 12.10.2019 and posted the case on 14.10.2019 for reporting compliance. Since M.Saravanan did not hand over possession, this Court directed the Fifth Respondent to take possession of the leased portion and report the same before this Court and also further directed this Respondent to take sufficient police protection to comply with the orders of this Court. 5. The Executive Officer had made a representation to the Inspector of Police, C-1, Flower Bazaar Police Station for providing necessary assistance and the same was also provided and the eviction process was commenced at 2.45 p.m. on 12.10.2019, when one Logeshwari, daughter of M.Saravanan made a claim that the portion in front of the Temple Structure did not belong to the Temple and objected to removal of the benches covered with thin sheets, put in the leased space and handed over the keys of the iron grill gate in the leased portion. However, the same was also removed and items like coconut, panner, viboothi packets, salt packets, etc., mentioned in the proceedings were kept in Temple custody as M.Saravanan did not turn up nor his daughter refused to take possession of the same, the iron gate was sealed and the entire portion was cordoned by this Respondent. 6. This Respondent states that in compliance of the further orders of this Hon’ble Court to remove all obstructions in front of Raja Gopuram, the grill gates on both sides of Raja Gopuram were completely removed on Tuesday and Wednesday and since there was huge rush of devotes on Tuesday and Wednesday (Kiruthigai), the iron pillar and sheets could not be removed on Wednesday and therefore this Respondent sought for time till 18.10.2019 (Friday) to remove the sheets adjoining the Raja Gopuram and also the iron pillars which was also done on 17.10.2019 (Thursday). 7. 7. This Respondent is herewith enclosing the photographs of the eviction process and the CD recording the same, and the photographs to show the position before the removal of the iron structures and after removal of the iron structures is now make 2 Vinayagar Idols visible and this Respondent states that in future also the space would be maintained as such without any obstruction for free ingress and egress of the devotees and also keep the Raja Gopuram structure without obstruction. 8. This Respondents states that the urgency to remove the encroached portion by M.Saravanan was to provide free moving space for the devotees during the ensuing Kanda Sashti Festival commencing on 28.10.2019 and also to be maintained in future since the Temple is visited by large number of devotees on Tuesdays, Fridays and monthly Kiruthigai and other Festival days and space in front of the Raja Gopuram belonging to the Temple is required to install barricades to regulate the queue of devotees.” 12. Learned Counsel for the parties have made elaborate submissions focussing on the reliefs sought by the Petitioners in these Writ Petitions. 13. In this factual backdrop, the following questions arise for determination in these Writ Petitions:- (i) Whether the said M.Saravanan (Petitioner in W.P. No. 28202 of 2019) is entitled to the relief of directing the First Respondent to consider and pass orders on the Petition filed by him on 29.07.2019 by Registered Post to implead him as party to the Revision Petition said to have been filed by the said A.Kokila before the First Respondent on 17.02.2016 in pursuance of the order dated 16.02.2016 in W.P. No. 5636 of 2016 passed by this Court? (ii) Whether the said Logeshwari (Petitioner in W.P. No. 29316 of 2019) is entitled to the relief of setting aside the notice dated 09.09.2019 issued by the Fifth Respondent to the said A.Kokila so as to restrain her eviction from the premises without issuing separate notice to her? 14. At the outset, it must be stated here that though it is portrayed as if the said A.Kokila sent Revision Petition under Section 114 of the TN HR & CE Act to the First Respondent, viz., the Secretary to the Government of Tamil Nadu, HR & CE Department, Chennai, there is no material produced showing acknowledgment for receipt of the same. In the absence of any proof of filing such Revision Petition, it would have to be necessarily held that the order dated 18.02.2016 passed by the Second Respondent confirming the order dated 30.09.2015 passed by the Third Respondent has attained finality and there is no impediment for the Fifth Respondent to implement that order on the lapse of two weeks from 16.02.2016, when the Writ Petition in W.P. No. 5636 of 2016 was disposed by this Court. When neither the filing nor the pendency of the Revision Petition has been proved by the said M.Saravanan in the manner recognized by law, there is no question of entertaining such Impleading Petition filed by him before the First Respondent. In that Impleading Petition, it is contended by the said M.Saravanan that the said A.Kokila had executed a will dated 15.03.2016 in his favour for succeeding to the property on her demise, but he has not produced any probate or letters of administration with the aforesaid will dated 15.03.2016 claimed to have been executed by the said A.Kokila in his favour. In this context, reference may be made to Section 213 of the Indian Succession Act, 1925, which reads as follows:- “213. Right as executor or legatee when established:- (1) No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the will under which the right is claimed, or has granted letters of administration with the will or with a copy of an authenticated copy of the will annexed. (2) This section shall not apply in the case of wills made by Muhammadans or Indian Christians, and shall only apply:- (i) in the case of wills made by any Hindu, Buddhist, Sikh or Jaina where such wills are of the classes specified in clauses (a) and (b) of section 57; and (ii) in the case of wills made by any Parsi dying, after the commencement of the Indian Succession (Amendment) Act, 1962 (16 of 1962), where such wills are made within the local limits of the ordinary-original civil jurisdiction] of the High Courts at Calcutta, Madras and Bombay, and where such wills are made outside those limits, in so far as they relate to immovable property situate within those limits.” The Hon’ble Supreme Court of India in Hem Nolini Judah -vs- Isolyne Sarojbashini Bose ( AIR 1962 SC 1471 ) has expounded the law on the subject as follows:- “The words of Section 213 are not restricted only to cases where the claim is made by a person directly claiming as a legatee. The section does not say that no person can claim as a legatee or as an executor unless he obtains probate or letters of administration of the will under which he claims. What it says is that no right as an executor or a legateee can be established in any Court of Justice, unless probate or letters of administration have been obtained of the will under which the right is claimed, and therefore it is immaterial who wishes to establish the right as a legatee or an executor. Whosoever wishes to establish that right, whether it be a legatee or an executor himself or somebody else who might find it necessary in order to establish his right to establish the right of some legatee or executor from whom he might have derived title, he cannot do so unless the will under which the right as a legatee or an executor is claimed has resulted in the grant of a probate or letters of administration.” In view of the aforesaid legal position, the said M.Saravanan cannot place any reliance on that will to succeed to estate of the said A.Kokila. 15. 15. That apart, on the termination of the lease on 09.06.2014 by the Fifth Respondent, the said A.Kokila ceased to have any interest in the premises of the Temple that was occupied by her and she was treated thereafter only as encroacher as borne out from the subsequent proceedings including the receipts issued towards collection of damages for use and occupation from her. This necessarily leads to the inference that the said A.Kokila did not have any heritable interest in the premises, and as such, by operation of the legal principle in the maxim actio personalis moritur cum persona meaning that a personal action dies with the person, the right to sue did not survive in respect of the premises after her lifetime and the Revision Petition claimed to have been filed by the said A.Kokila before the First Respondent, even if it is assumed to be true, has to be treated as abated on her demise on 21.12.2016. Moreover, the flimsy explanation of the said M.Saravanan that he came to know about the litigation between the said A.Kokila and the Fifth Respondent only on 29.07.2019 despite making payments on her behalf to the Fifth Respondent till then, is hard to believe and cannot be accepted. Therefore, looked from any angle, the said M.Saravanan cannot have any legal right to be substituted in the Revision Petition said to have been filed by the said A.Kokila. 16. The Petitioner in W.P. No. 29316 of 2019, viz., Logeshwari, claims to be the adopted daughter of the said A.Kokila, but no document has been produced in that regard. The Hon’ble Supreme Court of India in M.Vanaja -vs- M.Sarla Devi (Deceased) (Order dated 06.03.2020 in Civil Appeal No. 8814 of 2010) has laid down that in view of Sections 7 and 11 of the Hindu Adoptions and Maintenance Act, 1956, when actual ceremony of adoption has not been established, adoption cannot be inferred. As such, the said Logeshwari cannot claim any right as the adopted daughter of the said A.Kokila. 17. It has been further claimed by the said Logeshwari that the notice dated 09.09.2019 issued by the Fifth Respondent in the name of the said A.Kokila, who had died, was invalid. As such, the said Logeshwari cannot claim any right as the adopted daughter of the said A.Kokila. 17. It has been further claimed by the said Logeshwari that the notice dated 09.09.2019 issued by the Fifth Respondent in the name of the said A.Kokila, who had died, was invalid. Legal proceedings for eviction of the said A.Kokila as an encroacher of the premises had been taken under Section 78 of the TN HR & CE Act, which has already attained finality during her lifetime as found earlier by the order dated 08.02.2016 passed by the Second Respondent confirming the order dated 30.09.2015 passed by the Third Respondent. The order dated 16.02.2016 in the Writ Petition in W.P. No. 5636 of 2016 filed by the said A.Kokila directing the parties to maintain status quo as on that date for a period of two weeks automatically lapsed on 04.03.2016. In the absence of filing any Revision Petition under Section 114 of the TN HR & CE Act, before the First Respondent by the said A.Kokila thereafter and obtaining any order of interim injunction therein, the Fifth Respondent was certainly entitled in law to implement that order by removing the encroachment and taking possession of the property with police protection in terms of Section 79(1) of the TN HR & CE Act, which is extracted below:- “79. Mode of eviction on failure of removal of the encroachment as directed by the Joint Commissioner. - (1) Where within the period specified in the order under sub-section (4) of section 78, the encroacher has not removed the encroachment and has not vacated the property, the Assistant Commissioner having jurisdiction over the division may remove the encroachment and obtain possession of the property encroached upon, taking such police assistance as may be necessary. Any Police Officer whose help is required for this purpose shall render necessary help to the Assistant Commissioner.” A bare perusal of that legal provision reveals that no separate notice to the encroacher is contemplated to be issued at that stage and the fortuitous circumstance that the Fifth Respondent had issued the notice dated 09.09.2019 in the name of the said A.Kokila intimating the action proposed to be taken in accordance with Section 79(1) of the TN HR & CE Act, cannot confer any right on the said Logeshwari to complain that it is invalid. Moreover, the eviction of the encroachment that was initially scheduled to take place on 25.09.2019 had been adjourned till 12.10.2019 at the behest of the said M.Saravanan on his affidavit of undertaking to that effect filed before this Court so as to facilitate the removal of things from the premises by then. Having availed that benefit, the subsequent filing of another Writ Petition through the said Logeshwari questioning the validity of that notice apparently smacks of malafides and does not deserve any further consideration. 18. The next contention of the said Logeshwari is that it was she who was in occupation of the premises after the death of the said A.Kokila as her adopted daughter and had been paying rent to the Fifth Respondent thereafter, and as such, neither the Writ Petition filed by the said M.Saravanan nor the affidavit of undertaking to vacate by 12.10.2019 filed by him on 24.09.2019 were binding on her. In this regard, a mere cursory glance of the receipts for damages for use and occupation issued by the Fifth Respondent produced by the Petitioners evidences that it had been issued only in the name of the said A.Kokila, which was received by the said M.Saravanan. The very fact that the said Logeshwari has filed her Writ Petition taking a contradictory stand only after the undertaking given by said M.Saravanan in his Writ Petition exposes the apparent collusion between them and the falsity of the after-thought concocted in a desperate bid to illegally retain possession of the property belonging to the Temple, which cannot be countenanced. 19. The last submission vehemently advanced on behalf of the said Logeshwari that the Fifth Respondent does not have title to the extent of 100 sq.ft. in the property claimed for the reason that it is located in the public road is again misconceived. As rightly pointed out on behalf of the Fifth Respondent, the order of eviction dated 30.09.2015 passed by the Third Respondent confirmed in the order dated 08.02.2016 passed by the Second Respondent specifically mentioned the extent as 135.63 sq.ft. Section 116 of the Indian Evidence Act, 1872, clearly postulates that no tenant of immovable property, or person claiming through such tenant, shall during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property. Section 116 of the Indian Evidence Act, 1872, clearly postulates that no tenant of immovable property, or person claiming through such tenant, shall during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property. It is not disputed by the said Logeshwari that 30 sq.ft. of that space belongs to the Temple of the Fifth Respondent, which was occupied by the said A.Kokila as Lessee till the lease was terminated on 09.04.2014, and it was only during the subsistence of that lease, she was also in occupation of the extent of 100 sq.ft. claimed to be on the public road. It is not her case that the said A.Kokila had acquired independent title to the said extent of 100 sq.ft. from a different person. In this factual backdrop, reference must be made to Section 108(d) of the Transfer of Property Act, 1882, which reads as follows:- “108. Rights and liabilities of lessor and lessee:- In the absence of a contract or local usage to the contrary, the lessor and the lessee of immoveable property, as against one another, respectively, possess the rights and are subject to the liabilities mentioned in the rules next following, or such of them as are applicable to the property leased:- …. (d) if during the continuance of the lease any accession is made to the property, such accession (subject to the law relating to alluvion for the time being in force) shall be deemed to be comprised in the lease.” The Hon’ble Supreme Court of India in Chapsibhai Dhanjibhai Dana -vs- Purushottam [ (1971) 2 SCC 205 ] has explained the legal position as follows:- “15. .... Under Section 108(d) of the Transfer of Property Act, if any accession is made to the leased property during the continuance of a lease, such accession is deemed to be comprised in the lease. If the accession is by encroachment by the lessee, and the lessee acquires title thereto by prescription, he must surrender such accession together with the leased land to the lessor at the expiry of the term. The presumption is that the land so encroached upon is added to the tenure and forms part thereof for the benefit of the tenant so long as the lease continues and afterwards for the benefit of the landlord. The presumption is that the land so encroached upon is added to the tenure and forms part thereof for the benefit of the tenant so long as the lease continues and afterwards for the benefit of the landlord. ….” As such, the claim made by the said Logeshwari in this regard has to be rejected. 20. The irresistible conclusion that follows from the foregoing discussion is that the Petitioners in W.P. Nos. 28202 and 29316 of 2019, who are meddlesome interlopers attempting to indefinitely squat over the property belonging to the Temple without semblance of any legal right whatsoever, are not entitled to any of the reliefs claimed in these Writ Petitions. The taking over of the possession of the property of the Temple by the Fifth Respondent on 14.10.2019 following the procedure under Section 79(1) of the TN HR & CE Act is recorded. 21. In the upshot, the Writ Petitions are dismissed. Consequently, the connected Miscellaneous Petition is closed. No costs.