Research › Search › Judgment

Madras High Court · body

2024 DIGILAW 635 (MAD)

Geetha Mathew v. S. Prakash

2024-03-08

P.B.BALAJI

body2024
JUDGMENT : (Prayer: Second Appeal filed under Section 100 of the Code of Civil Procedure, against the judgment and decree passed by the learned II Additional District Judge, Thiruvallur at Poonamalle in A.S. No.8 of 2012 dated 21.07.2015 who reversed the Judgment and decree of the learned Sub Court, Poonamallee in O.S. No.113 of 2006 dated 15.11.2011.) 1. The plaintiff, in a suit for declaration and recovery of possession of the suit property, having initially succeeded before the trial Court and on Appeal having lost before the First Appellate Court, is the appellant herein. 2. The parties are described as per their litigative status before the trial Court. 3. The plaintiff, claiming to be the founder trustee of the trust viz., ‘Friends for the Needy (FN)’, stated that the trust is a Registered Public Charitable Trust and the suit property belonged to the Trust, having become entitled to the same by way of gift from one Mr.Lalchand. According to the plaintiff, the trust is running a Centre for rehabilitation for mentally retarded persons. The plaintiff also states that there was an agreement of sale by the original owner of the property in favour of two third parties and the said agreement holders had divided the suit property into two. However, the plaintiff approached the Collector of Tiruvallur to get the agreement holders evicted and in the meantime, the defendant taking advantage of property being vacant on the front side, trespassed into the same. On coming to know that the defendant had filed a suit against one Ramesh and obtained an exparte order of interim injunction, the plaintiff filed an impleading application which was closed on 12.10.2004. As the defendant did not vacate, the suit has been instituted for declaration and recovery of possession. 4. The defendant filed a written statement seeking dismissal of the suit on the following grounds: (i) The plaintiff had suppressed material facts. (ii) The plaintiff had not valued suit claim properly. (iii) The Trust is not before the Court and the plaintiff has no authority to file the suit. (iv) Defendant has perfected title by adverse possession, being in possession for more than three decades. (v) It is incorrect to state that the impleading application was closed. 5. The trial Court decreed the suit, finding that defendant is a trespasser and the plaintiff had got valid title under Ex.A2, gift deed from one, Lalchand. (iv) Defendant has perfected title by adverse possession, being in possession for more than three decades. (v) It is incorrect to state that the impleading application was closed. 5. The trial Court decreed the suit, finding that defendant is a trespasser and the plaintiff had got valid title under Ex.A2, gift deed from one, Lalchand. The defendant preferred an Appeal in A.S. No.8 of 2012 and the First Appellate Court, dismissed the suit holding that the gift deed in Ex.A2, had not been established and moreover, the plaintiff did not have the authority to file the suit and the First Appellate Court proceeded to dismiss the suit, allowing the Appeal of the defendant. 6. I have heard Mr.R.Prabakaran, learned counsel for the plaintiff/appellant and Mr.P.Valliappan, learned Senior Counsel for Mr.B.Vijay, learned counsel for the respondent/defendant. I have also independently gone through the pleadings, oral and documentary evidence as well as the judgments of the Courts below. 7. On 18.10.2023, the above Second Appeal was admitted on the following substantial question of law:- 'Whether the judgment of the First Appellate Court is justified in law in negativing the prayer for declaration made by the appellant when the agreement of sale relied on by the respondent will not create any interest in the suit property?' 8. The learned counsel for the appellant/plaintiff would submit that the plaintiff has been working for social cause and in representative capacity, the suit had been filed and drawing a parallel to a temple, the learned counsel for the appellant would state that the plaintiff as founder Trustee, was well within her rights to represent the Trust and file a suit. He would also state that the defendant was only a trespasser, having even lost his rights to performance under the alleged agreement of sale in Ex.B1 and he would also contend that the trial Court had also rightly found that the plea of part performance raised by the defendant had not been proved. The learned counsel for the appellant would also state that the defendant had not even raised a plea of limitation and therefore, viewed from any angle, the plaintiff was entitled to decree as prayed for. 9. The learned counsel for the appellant would also state that the defendant had not even raised a plea of limitation and therefore, viewed from any angle, the plaintiff was entitled to decree as prayed for. 9. Per contra, the learned Senior Counsel appearing for the respondent would invite my attention to the plaint cause title, in terms of which, it is clear that the founder trustee Geetha Mathew filed the suit in her individual capacity and not in a representative capacity. In fact, he would also state that under Section 3 of Limitation Act, 1963, even if the defendant had not raised the plea of limitation specifically, even then the Court was duty bound to see whether the suit was filed in time. He would also state that the gift deed was admittedly not acted upon, since possession was not delivered to the plaintiff and therefore, the gift was not completed in accordance with the provisions of the Transfer of Property Act, 1882. 10. The learned Senior Counsel would state the Court should draw adverse inference for not examining the Donor, Mr.Lalchand. The learned Senior Counsel would invite my attention to the documents exhibited by the plaintiff and state that the trust deed also has not been filed by the plaintiff to show that the plaintiff was competent to represent the Trust and in the absence of the trust deed before the Court, the authorization letter in Ex.A1 was of no avail. The learned Senior Counsel would also invite my attention to the admissions of the plaintiff as P.W.1 in cross examination, which have also been extracted by the First Appellate Court. 11. I have carefully considered the rival submissions advanced by the learned counsel for the appellant and the learned Senior Counsel for the respondent. 12. Admittedly, even according to the plaintiff, the suit property was gifted to the Trust ‘Friends for the Needy (FN)’ and not to the plaintiff in her individual capacity. Though the plaintiff claims that she is the founder Trustee of the trust, excepting for Ex.A1, authorizations letter and Ex.A2, gift deed, executed by the Donor in favour of the Trust, I do not find any material documentary evidence adduced on the side of the plaintiff, to even show that under the Trust Deed, the plaintiff is the founder Trustee and she is competent to file the suit. Even otherwise, the suit should have been filed by the Trust, ‘Friends for the Needy (FN)’, represented by its authorized signatory and assuming that the plaintiff is the founder Trustee and competent to represent the Trust, then she could have been maintained the suit, representing the Trust/plaintiff. However, I do not find any averments in the plaint connecting the plaintiff to the suit property excepting for a bald statement that she is one of the founder Trustees of the Trust. 13. Also, as rightly contended by the learned Senior Counsel for the respondent, even though the suit property has been gifted to the Trust, it is seen from the evidence of P.W.1 that even on the date of gift deed, the Trust was not put in possession. No doubt, under Section 122 of Transfer of Property Act, 1882, a gift would become complete only on delivery of property and acceptance of the gift. Delivery of the property need not be always physical and can be symbolic also. For example, if tenants are in occupation of the property which is subject matter of the gift, it would not be possible for the Donor to hand over physical possession of the property settled to the Donee. In such cases, handing over symbolic possession would suffice as the persons in physical possession do not claim any adverse rights as against the Donor, but only claim under the Donor However, in the case on hand, the defendant has clearly pleaded strongly against the right and title of the plaintiff and also against the Trust. It is his specific case that he has been in physical possession of the suit property under a sale agreement, in part performance and his possession is adverse to that of the Trust and also the plaintiff. In such circumstances, the plaintiff, claiming right under settlement deed, would have to clearly establish delivery of property gifted, in order to establish a lawful and valid title under the gift deed. Therefore, I am in agreement with the contention of the learned Senior Counsel for the appellant that in view of the categorical admissions made by the P.W.1, the plaintiff, Ex.A2, gift deed had not been acted upon right from inception and consequently no legal right would flow under the same. 14. Therefore, I am in agreement with the contention of the learned Senior Counsel for the appellant that in view of the categorical admissions made by the P.W.1, the plaintiff, Ex.A2, gift deed had not been acted upon right from inception and consequently no legal right would flow under the same. 14. With regard to limitation, even though the defendant may not have specifically raised the ground of limitation to seek dismissal of the suit, the defendant has stated that the defendant has been in possession of the suit property for more than three decades and that he has acquired title by adverse possession and entitled to protect his possession. Moreover, Section 3 of the Limitation Act, casts a duty on the Court, even though not specifically pleaded to see if the plaint has been filed in time. 15. The plaint is totally silent about the dates on which the defendant encroached or trespassed into the suit property and the allegations are also very vague. Moreover, in cross examination, P.W.1 has stated that she does not even know from when the defendant is in possession. She has also admitted that the plaint is also silent with regard to the date of the defendant coming into possession of the suit property and nature of his trespass. 16. Per contra, it is the specific case of the defendant that they have been in possession right from the date of Ex.B1 sale agreement, dated 23.08.1973. The defendant has also filed Ex.B4, Certificate of the Inspector Town Survey, dated 10.03.1999, Electricity Consumption Charges Receipts, Property Tax Assessment for the year 1992 -1993 and Property Tax Receipts in Ex.B8 and Ex.B9. All these would clearly go to show that the defendant has been in possession for atleast more than 12 years prior to the institution of the suit. Therefore, the suit for recovery of possession is clearly barred by the law of limitation. 17. With regard to the plaintiff being competent to file the suit, I have already seen that even the trust deed has not been exhibited before the trial Court and the plaintiff has filed the suit in her individual capacity and merely mentioning she is the Founder Trustee of the Trust. This would not imply that the suit has been filed by the Trust represented by its Founder Trustee. This would not imply that the suit has been filed by the Trust represented by its Founder Trustee. The proper cause title ought to have been the Trust, represented by the Founder Trustee. Therefore, the suit as prayed for the relief of declaration to declare the plaintiff's title to the suit property also cannot be granted, since the plaintiff, Geetha Mathew, is admittedly not the owner of the suit property. Order XXXI Rule 1 & 2 CPC is extracted for easy understanding: “1. Representation of beneficiaries in suits concerning property vested in trustees etc.—In all suits concerning property vested in a trustee, executor or administrator, where the contention is between the persons beneficially interested in such property and a third person, the trustee, executor or Administrator shall represent the persons so interested, and it shall not ordinarily be necessary to make them parties to the suit. But the Court may, if it thinks fit, order them or any of them to be made parties. 2. Joinder of trustees, executors and administrators.—Where there are several trustees, executors or administrators, they shall all be made parties to a suit against one or more of them: Provided that the executors who have not proved their testator’s will, and trustees, executors and administrators outside 1[India], need not be made parties.” 18. From the above, it is clear that the plaintiff could have been the Trust and not one of its Founder Trustees. Moreover, in view of the mandate of Rule 2 extracted hereinabove, all trustees should have been made parties to the suit. Admittedly, the plaintiff claims that she is only one of the trustees. Therefore, without even filing the trust deed and not impleading the other trustees, the suit as prayed for, is liable to fail. Viewed from all the above angles, the plaintiff is not entitled to succeed to any of the reliefs. The First Appellate Court has applied the correct principles of law and on a proper appreciation of the oral and documentary evidence available before it, dismissed the suit. I do not find any illegally or perversity in the findings arrived at by the First Appellate Court. 19. Accordingly, the substantial question of law is answered against the appellant and the Second Appeal is dismissed with the above observations. There shall be no order as to costs.