Madras High Court
Saraswathi Ammal vs V.Vadamalai Rengappan (Died) on 1 November, 1996
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
JUDGMENT RESERVED : 04.10.2018
JUDGMENT PRONOUNCED : 25.10.2018
CORAM :
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
S.A.(MD) No.632 of 1997
Saraswathi Ammal ... Appellant
vs.
1.V.Vadamalai Rengappan (died)
2.Subbammal
3.Raja (Died)
4.Rani
5.V.Anandhi
[R2 to R4 have been impleaded as legal
heirs of the first respondent vide order made in
M.P.No.3 of 2008 and fifth respondent has been
impleaded as legal heir of the third respondent
vide order made in M.P.(MD) Nos.1 to 3 of 2008]
... Respondents
Prayer:- Second Appeal filed under Section 100 of the Code of Civil
Procedure, to set aside the judgment and decree dated 01.11.1996 in
A.S.No.185 of 1995 on the file of the Principal District Judge, Madurai
reversing the judgment and decree dated 18.08.1995 made in O.S.No.
393 of 1993 on the file of the District Munsif Court, Madurai.
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2
For Appellant : Mr.M.V.Venkataseshan
For R2 and R4 : Mr.V.Srinivasan
For R5 : No appearance
JUDGMENT
This second appeal had been filed to set aside the judgment and decree dated 01.11.1996 in A.S.No.185 of 1995 on the file of the Principal District Court, Madurai reversing the judgment and decree dated 18.08.1995 in O.S.No.393 of 1993 on the file of the District Munsif Court, Madurai.
2.The defendant in O.S.No.393 of 1993 on the file of the District Munsif Court, Madurai, is the appellant herein.
3.O.S.No.393 of 1993 had been filed by V.Vadamalai Rengappan against the defendant Saraswathi Ammal seeking a judgment and decree declaring that he is entitled to the suit property and seeking an order of permanent injunction restraining the defendant from interfering with his possession and enjoyment of the suit property and also for a direction to pay the costs of the suit.
4.This suit came up for consideration before the Principal District Munsif Court, Madurai and by judgment and decree dated 18.08.1995, the suit was dismissed with costs.
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5.Challenging that judgment, the plaintiff had filed A.S.No. 185 of 1995. This appeal came up for consideration before the learned Principal District Judge, Madurai. By judgment and decree dated 01.11.1996, the learned Principal District Judge, Madurai, allowed the appeal with cost and thereby, set aside the judgment and decree of the trial Court.
6.Challenging the said judgment and decree, the defendant in the suit has filed the present second appeal. This second appeal was admitted on the following substantial questions of law:
(i) whether the lower appellate Court is right in holding that the respondent could take the benefit of Section 43 of Transfer of Property Act, when the sale of service inam land is void as apposed to public policy;
(ii) whether the lower appellate Court is right in holding that the respondent could invoke Section 43 of Transfer of Property Act, when the suit was not filed as against the original transferee or his heirs?;
(iii) whether the lower appellate Court is right in allowing the appeal, when the land vested with the Government under Tamil Nadu Act 30/63, patta was granted under the Act in 1971, when sale to the appellant was in 1972 and revenue patta was granted in 1980 to the appellant under Ex.B12.
7.Pending the appeal, the respondent, who was the plaintiff, died and his legal representatives were brought on record as http://www.judis.nic.in 4 respondents 2 to 4. Subsequently, the third respondent also died and his legal representative was brought on record as fifth respondent. O.S.No.393 of 1993 (Principal District Munsif Court, Madurai)
8.The plaintiff V.Vadamalai Rengappan had, as stated above, filed the suit seeking declaration of title and permanent injunction to protect his possession. The suit property was Punja land to an extent of 1.60 acres, which was on the eastern side of the larger extent of 3.20 acres in new R.S.No.395/2, old Survey No.57 in T.D.No.537, Kulasekarankottai Village, Vadipatti Taluk, Madurai. According to the plaintiff, the said total area of 3.20 acres in T.D.No.537 was originally an Inam Estate for providing "Malai katti Servai" - providing garlands for the deity in Sri Kadali Narasinga Perumal Temple. The original holder of the Inam, was Rengaier. By sale deed dated 12.05.1959, he sold the suit property namely, the eastern portion measuring 1.60 acres to the plaintiff. The plaintiff claimed to be in possession from the date of purchase. He claimed to have paid kist and raising dry crops. The plaintiff further claimed that he did not have any knowledge of the inam proceedings. He came to know of some order of the Thasildar, dated 19.04.1980 that patta had been issued in favour of the defendant for the entire extent of 3.20 acres. It was http://www.judis.nic.in 5 claimed that the defendant had never exercised her right over the suit property.
9.The plaintiff further stated that after the death of the Rengaier, his son Ponnadi became the inamthar and he sold the entire 3.20 acres without reference to the sale deed executed by his father. Ponnadi sold the entire property to the defendant by sale deed dated 03.08.1972.
10.The plaintiff claimed that Ponnadi had no right to convey the suit property. It had been stated that even otherwise title could be conveyed only with respect to the western half measuring 1.60 acres. It had been stated that the Thasildar, by order dated 10.09.1984, had granted patta for the entire area of 3.20 acres. The plaintiff claimed that he had filed an appeal against the said order before the Sub Court, Madurai, in C.M.A.No.60 of 1992.
11.The plaintiff stated that taking advantage of the grant of patta, the defendant had been attempting to interfere with his peaceful possession and enjoyment. He had consequently filed the suit seeking declaration of title and injunction to protect his possession.
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12.The defendant filed written statement. She claimed to be in possession of the suit property. She disputed the averment that the plaintiff was in possession of the suit property. She stated that the sale in favour of the plaintiff had been held as invalid by the Inam Settlement Thasildar, Madurai, as early as on 23.10.1968. The plaintiff had not filed any appeal against the said order of the Inam Settlement Thasildar, Madurai. The order had attained finality and is conclusive. In the order, it had been stated that the vendor, Rengaier, had no title to sell the property. He was only an inamdar and the lands were inam lands. It had been further stated in the written statement that the claim of the plaintiff that he was not aware of the inam proceedings, is false.
13.It was further stated that the plaintiff had created records as if he had donated 1.60 acres for forming a residential colony named Seetharam Doss Colony after the then Collector. He claimed to have surrendered possession to the Government and had divested himself of title and possession of the property. He also collected huge amounts from third parties and the Government had converted the land as Natham Poramboke and issued pattas to many third parties. http://www.judis.nic.in 7
14.The defendant further stated that after the Inam Settlement Thasidar passed the order holding the sale made by Rengaier as in valid, the said Rengaier and his son Ponnadi initiated proceedings before the Inam Tribunal in C.M.A.No.301 of 1970. The Inam Tribunal by its order dated 30.10.1970, remanded the matter back to the Settlement Thasildar, for conducting fresh enquiry. The Settlement Thasildar passed an order on 29.06.1971, holding that the service holder alone was entitled for ryotwari patta. It was also stated that the service holder can surrender his service rights and obtain patta on payment of compensation as fixed by the Revenue authority to the Government.
15.Ponnadi, the only service holder alive, applied for ryotwari patta. By order dated 09.11.1971, the Settlement Thasildar, requested the Nilakottai Thasildar, to fix the fair rent for the lands in S.No.395/2 measuring 3.20 acres. The Thasildar, Nilakottai, by order dated 30.05.1972, fixed the fair rent at Rs.1,563/- and further directed that the said amount should be paid in 10 equal installments. Patta was granted to Ponnadi subject to the payment of fair rent.
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16.Ponnadi paid the first installment on 14.08.1972. It was stated by the defendant in her written statement that all these proceedings were to the knowledge of the plaintiff. The order setting aside the sale deed dated 17.05.1959 in favour of the plaintiff was passed only after issuing notice to the plaintiff and another person C.Govindan, who also claimed rights under a similar invalid sale deed for the remaining 1.60 acres in the western half.
17.The defendant stated that the plaintiff had suppressed all these facts in the plaint. It was also stated that the suit was barred under the law of limitation. The defendant stated that she purchased the entire 3.20 acres by sale deed dated 30.08.1972 after the inam proceedings concluded from the real title holder. She claimed to be in physical possession and enjoyment of the entire property. She initiated proceedings before the Revenue Department to cancel the pattas issued in favour of third parties at the time of formation of the Seetharam Doss Colony. The pattas were also cancelled.
18.The defendant disputed the contention of the plaintiff that the inam proceedings will flow back to the benefit of the prior vendor. The defendant reiterated that she was in lawful possession of the lands. She had also lodged a police complaint on 09.10.1993, against http://www.judis.nic.in 9 the plaintiff for attempting to interfere with her possession. She stated that the suit should be dismissed.
19.On the basis of the above pleadings, the learned Principal District Munsif, Madurai framed the following issues for trial:
(i) whether the plaintiff is entitled for declaration of title to the suit property;
(ii) whether the plaintiff is entitled for permanent injunction with respect to the suit property;
(iii) whether the suit is barred by the law of limitation;
(iv) to what reliefs the plaintiff is entitled to;
20.During trial, the plaintiff V.Vadamalai Rengappan, was examined as P.W1. He also examined two independent witnesses namely, R.Subbaiah and Ravi Bharathi as P.W2 and P.W3. P.W2 was the owner of the land adjacent to the suit property. P.W3 was a photographer, who had taken photographs of the lands, which were subsequently marked as Ex.A13 to Ex.A15. He also filed the photograph receipts, Ex.A16.
21.On the side of the defendant, C.Govindan, the brother of the defendant was examined as D.W1. The defendant also examined http://www.judis.nic.in 10 Ponnadi, the vendor of the defendant as D.W2 and Nalamegam, who was one of the person to whom patta was granted during the formation of Seetharam Doss Colony as D.W3.
22.The plaintiff marked Ex.A1 to Ex.A25. Ex.A1 is the sale deed dated 17.05.1959 in favour of the plaintiff. Ex.A3 is the sale deed dated 18.05.1959 executed by Chenna Krishnan in favour of Govindan. Ex.A4 to Ex.A12 are kist receipts. Ex.A13 to Ex.A15 are photographs and Ex.A16 is the receipt for taking photographs. Ex.A17 is a release deed executed by Ramanathan dated 14.03.1970. Ex.A18 is the partition deed. Ex.A19 is the order of the Nilakottai Thasildar dated 10.08.1984. Ex.A20 is the sale deed dated 30.08.1972 in favour of the defendant. Ex.A21 is the notice issued by the Settlement Thasidar. Ex.A24 is the patta in the name of Subbaiah Servai. Ex.A25, dated 11.10.1986, is the sale deed executed by the Subbaiah in favour of Sinnammal.
23.The defendant marked Ex.B1 to Ex.B58. Ex.B1 is the notice sent to the plaintiff and Govindan. Ex.B3 is the order to fix the fair rent. Ex.B4 is the order of the Nilakottai Thasildar, to fix the fair rent dated 30.05.1972. Ex.B6 is the receipt for payment towards fair rent by Ponnadi. Ex.B8 is the patta granted by the inam Commissioner. http://www.judis.nic.in 11 Ex.B9 is the inam register. Ex.B10 is the receipt for sale consideration paid by the defendant. Ex.B11 is the certificate issued by the Nilakottai Thasildar. Ex.B12 dated 19.04.1980, is the patta granted to the defendant. Ex.B13 is the chitta. Ex.B18 is the chitta in the name of the defendant. Ex.B21 is the order granting patta in the name of the defendant and Ex.B22 is the patta. Ex.B23 to Ex.B44 are kist receipts. Ex.B45 is the certificate given by the Village Administrative Officer, Vadipatti. Ex.B48 is the land settlement register. Ex.B49 to Ex.B58 are the adangal.
24.By judgment dated 18.08.1995, the learned Principal District Munsif examined the evidence on record. The learned Principal District Munsif first examined the issue of limitation and held that the suit was not barred by the limitation, since the claim of limitation was based on Ex.B12 dated 19.04.1980. Ex.B12 is the order of the Nilakottai Thasildar, granting patta to the defendant. It was found that the said order had not been served on the plaintiff and consequently, the learned Principal District Munsif held it cannot be presumed that the plaintiff had knowledge about the said order. It was held that the suit was not barred by limitation. http://www.judis.nic.in 12
25.The learned Principal District Munsif then took the issues relating to reliefs of declaration of title and grant of injunction. He first examined Ex.A1, which is the sale deed executed by Rengaier in favour of the plaintiff with respect to the eastern portion of 1.60 acres out of the larger extent of 3.20 acres in S.No.395/2. In the sale deed, Rengaier had described the suit property as " Pithurargitha Pathiam".
26.The above statement is obviously not correct. It was a false statement.
27.The lands were actually service inam lands granted for the purpose of "Malai Katti Sevai" for Kodai Road Narasinga Perumal Temple. It was hoped that Rengaier would perform oblations for the temple. On the other hand, he sold the lands for monetary consideration. The entire 3.20 acres were sold by Ex.A1 to Ex.A3. The plaintiff had filed kist receipts. But however, it was found that the kist receipts did not correlate to the patta numbers of the suit property.
28.It was also found that the evidence of P.W2 and P.W3 were of no assistance to the case of the plaintiff. It was found that the plaintiff had filed an appeal against Ex.B2, which was the order of the http://www.judis.nic.in 13 Settlement Thasildar, setting aside the sale deed in favour of the plaintiff. The plaintiff had filed the appeal in the year 1995. He had not informed the Court as to the result of the said appeal.
29.The learned District Munsif also placed reliance on Ex.B1 in which, it had been stated that the grant was made for rendering "Malai Katti Sevai" for the temple of the deity Sri Kadali Narasinga Perumal. It was then stated that under Ex.B2, the Settlement Thasildar, requested the Nilakottai Thasildar, to fix the fair rent. The fair rent was fixed under Ex.B4. Ex.B7 is the sale deed in favour of the defendant.
30.It has been stated that the fair rent had been paid to the Government. This is established by Ex.B10. Ex.B12 is the order, granting patta to the defendant and Ex.B13 is the chitta. Ex.B26 is the order of the UDR Thasildar, dated 10.09.1984. By that order, the defendant was granted patta. Ex.B23 to Ex.B44 are the kist receipts and Ex.B48 is the settlement register, which reflects the name of the defendant. Ex.B49 to Ex.B58 are the adangal in the name of the defendant.
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31.Considering all the above documents, the learned District Munsif held that the plaintiff cannot be granted the declaration of title. He also found that the defendant was in possession of the property. The learned District Munsif, also considered Section 41 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, under which, any sale of any inam granted for the performance of a service is void.
32.The learned District Munsif held that according to that provision, the sale in favour of the plaintiff was void. The learned Judge also considered the fact that Ponnadi, D.W2 was granted only ryotwari patta and it was only thereafter that the fair rent was fixed and the defendant had purchased the property. On the basis of the above facts, the learned District Munsif, dismissed the suit with cost. A.S.No.185 of 1995 ( Principal District Judge, Madurai)
33.The plaintiff filed the above said appeal before the Principal District Court, Madurai. The learned Principal District Judge, took up the appeal for consideration. By judgment dated 01.11.1996, the learned Principal District Judge, Madurai again re-apprised the evidence and framed points for consideration. The learned Principal District Judge, framed two points for consideration namely, http://www.judis.nic.in 15
(i) whether the plaintiff is entitled to the suit property;
(ii) whether the defendant had acquired title by adverse possession;
34.The learned Principal District Judge, Madurai found that as against the order in Ex.B2, the original inam holder Rengaier and his son Ponnadi, who was examined D.W2 had filed an appeal. This appeal was allowed and ryotwari patta was granted under Section 11 r/w 8 (2) (ii) of Act 30/63.
35.Pending appeal, Rengaier died. His son Ponnadi D.W2 was his legal heir. He was granted patta and on payment of consideration of Rs.1563/-, he was relieved of his service burden. He executed Ex.B7 sale deed in favour of the defendant. Ex.B11 is the receipt showing that the entire fair rent amount fixed as consideration had been paid to the Government.
36.The learned District Judge, after considering all these documents also wondered how the Government could have classified the land as Poramboke land. The learned District Judge then considered the scope of Section 43 of Transfer of Property Act. It was stated that though Rengaier has sold the property under Ex.A1 to the http://www.judis.nic.in 16 plaintiff, the plaintiff was not granted ryotwari patta. Ponnadi as the legal heir of the Rengaier had successfully obtained ryotwari patta. It was stated that consequently the title of the estate of Rengaier had been regularised and the plaintiff became the absolute owner of the suit property by his purchase under Ex.A1. He had paid valuable consideration to the service holder Rengaier and continued to be in possession of the suit property.
37.The learned District Judge held that the plaintiff had established title to the suit property. He also found that the plaintiff paid kist receipts under Ex.A4 to Ex.A12. It was also observed that the suit property was lying as vacant land and had gained value because it was sub divided as house plots and that only then, did the defendant attempt to take possession. Holding as above, the learned District Judge allowed the appeal and set aside the judgment and decree in O.S.No.393 of 1993 dated 18.08.1995 passed by the District Munsif Court, Madurai.
S.A.(MD) No.632 of 1997
38.The defendant filed the present second appeal. Pending the appeal, the respondent, who was the plaintiff died, his legal heirs were brought on record. One of the legal heirs also died and his legal heir http://www.judis.nic.in 17 was also brought on record. The second appeal had been admitted on the following substantial questions of law.
(i) whether the lower appellate Court is right in holding that the respondent could take the benefit of Section 43 of Transfer of Property Act, when the sale of service inam land is void as apposed to public policy;
(ii) whether the lower appellate Court is right in holding that the respondent could invoke Section 43 of Transfer of Property Act, when the suit was not filed as against the original transferee or his heirs?;
(iii) whether the lower appellate Court is right in allowing the appeal, when the land vested with the Government under Tamil Nadu Act 30/63, patta was granted under the Act in 1971, when sale to the appellant was in 1972 and revenue patta was granted in 1980 to the appellant under Ex.B12.
39.For the sake of convenience, the parties will be referred as plaintiff and the defendants. It is to be reiterated that the appellant is the defendant and the respondents are the legal heirs of the plaintiff.
40.Heard arguments advanced by Mr.M.V.Venkataseshan, learned counsel for the appellant / defendant and Mr.V.Srinivasan, learned counsel for the respondents / legal heirs of the plaintiff.
41.O.S.No.393 of 1993 had been filed by the plaintiff V.Vadamalai Rengappan, who is represented by his legal heirs in the second appeal seeking declaration of title to the suit property, which is land measuring 1.20 acres out of a larger extent of 3.20 acres in http://www.judis.nic.in 18 R.S.No.395/2, old Survey No.57 in T.D.No.537, Kulasekarankottai Village, Vadipatti Taluk, Madurai.
42.The lands in S.No.395/2, old Survey No.57 in T.D.No.537, Kulasekarankottai Village, Vadipatti Taluk, Madurai, were an inam land. The grant was made for "Malai Katti Sevai" for Narasinga Perumal Temple situated in Ammaya Naickenur Village. The inam was granted in the name of Rengaiyer. His son was Singaperumal Iyer. Singaperumal Iyer had two sons namely, S.Rengaiyer and S.Thirupuli Krishnaiyer. They orally partitioned the area of 3.20 acres in two equal portions. The eastern half of 1.60 acres was taken over by S.Rengaiyer and the western half of 1.60 acres was taken over by S.Thirupuli Krishnaiyer. The suit property is the eastern half, which was taken by Rengaiyer. It measured 1.60 acres.
43.Section 41 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 is as follows:
Resumption and re-grant of inam granted for performance of any charity or service:
Any exchange, gift, sale or mortgage and any lease for a term exceeding five years of the whole or any portion of any inam granted for the support or maintenance of a religious institution or for the performance of a charity or service connected therewith or of any other religious charity and made, confirmed or recognized by the Government shall be null and void:
http://www.judis.nic.in 19 Provided that any transaction of the nature of aforesaid (not being a gift) may be sanctioned by the Government as being necessary or beneficial to the institution.
44.The equivalent provision was originally Section 44-B of the Madras Act 2 of 1927 by Amendment Act 11 of 1934. Section 44-B had been re-enacted as Section 35 of the Madras Hindu Religious and Charitable Endowments Act, 1951.
45.There were a number of inams granted as remuneration for services rendered particularly in religious institution. The persons to whom these inams were granted either alienated the inam lands or were enjoying the lands without rendering the service. Section 44-B of Act 2 of 1927, Section 35 of the Madras Hindu Religious and Charitable Endowments Act, 1951 and Section 41 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, have been in force successively to make good the loss the institutions will suffer if the services which they are entitled to on account of the inams are lost.
46.An explanation had been given to Section 41 that it will not affect the rights and obligations of the landholder and tenant of any land, which is ryot land as defined in the Tamil Nadu Estates Land Act, 1908.
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47.Under Section 41 (2) (a), the Collector upon following due process has a right to resume the whole or any part of any such inam, which had been exchanged, gifted, sold, mortgaged or leased for a exceeding period of five years. The further provisions under Section 41 related to procedure given for said resumption of the land.
48.A plain reading of the Section 41 implies that if any land had been marked as inam for the support or maintenance of a religious institution or for the performance of a charity or service connected with any religious charity, then, sale of such land shall be null and void.
49.In the instant case, lands measuring 3.20 acres in Kulasekaran Kottai Village, Vadipatti Taluk, Madurai District had been originally granted as Malaikatti inam sevai for the pagoda of Sri Kadali Narasinga Perumal situated in Ammaya Naickenur Village.
50.The grante of the inam was Rengaier. He had a son Singaperumal Iyer. Singaperumal Iyer had two sons, S.Rengaiyer and S.Thirupuli Krishnaiyer. Both of them orally partitioned the 3.20 acres into eastern and western halfs. The eastern half measured 1.60 http://www.judis.nic.in 21 acres and the western half also measured 1.60 acres. S.Rengaiyer was allotted the eastern half and S.Thirupuli Krishnaiyer was allotted the western half. S.Rengaiyer had three sons, R.Ponnadi, Thirumalirunsolai and Chinna Krishnaiyer. S.Thirupuli Krishnaiyer had two sons, T.Sundarajaiyer and T.Chenna Krishnaiyer.
51.S.Rengaiyer, who was allotted the eastern half of 1.60 acres, sold the entire area to the plaintiff V.Vadamalai Rengappan, by sale deed dated 17.05.1959. This had been produced as Ex.A1. In the sale deed, the lands were described as "Pithurargitha Pathiam"
namely, ancestral property. This statement is false. The character of inam had not changed in the year 1959. It was still inam land. The purpose of the inam was to provide service to the Deity, Sri Kadali Narasinga Perumal. The inam itself was Malaikatti inam. It was to provide garlands to the Deity.
52.A reading of Ex.A1 reveals that the schedule mentioned property in the sale deed namely 1.60 acres on the eastern half in S.No.395/2 was already sold to the plaintiff and the sale deed was only a document reducing in writing such sale. It is also seen that Rengaier had leased out the property. He also created a mortgage with right to possess to Pappathiammal, on 17.05.1943. In the sale http://www.judis.nic.in 22 deed, it was stated that the plaintiff should redeem the mortgage. The entire land was sold for a total consideration of Rs.1,000/-. S.Rengaiyer, similarly sold 80 cents on the north western half of Survey No.395/2 by Ex.A2 to C.Govindan. Those lands were also mortgaged by Pappathiammal. The total consideration was Rs.5,00/-. Again on 18.05.1959, T.Chenna Krishnaiyer, sold the remaining 80 cents on the western half to C.Govindan, for a total consideration of Rs.500/-. Again, the said property had also been mortgaged with right to possess in favour of Pappathiammal.
53.Section 35 of the Madras Hindu Religious and Charitable Endowments Act, 1951 and Section 41 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, specifically prohibit such sale. When a statute prohibits sale of this nature, then, the sale deed is void by statute. It is void in law and no right can ever flow from the sale even in future. Void by statute is to be distinguished from void by act of one of the parties.
54.It is in this background that Section 43 of Transfer of Property Act, has to be examined. Section 43 of Transfer of Property Act is as follows:
43.Transfer by unauthorized person who subsequently acquires interest in property transferred:-
http://www.judis.nic.in 23 Where a person fraudulently or erroneously represents that he is authorized to transfer certain immovable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferrer may acquire in such property at any time during which the contract of transfer subsists.
Noting in this section shall impair the right of transferees in good faith for consideration without notice of the existence of the said option.
55.Section 43 of Transfer of Property Act relates to fraudulent representation. It comes into operation when a fraudulent representation is made that the vendor is authorized to transfer the immovable property. In such an instance, then, at the option of the transferee, Section 43 comes into play. This fraudulent representation under Section 43 is different from rendering a sale as null and void by statute as provided under Section 35 of the Madras Hindu Religious and Charitable Endowments Act, 1951 and under Section 41 of Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959. Under Section 43 of the Transfer of Property Act, if subsequently the vendor is found to have gained title then, the transferee can seek the right to regularize his sale. But under Section 41 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, since the statute declares that the sale transaction of inam lands are void, the transferee can never have any right even subsequently to regularize his sale. I hold that the entire premise, on which, the first appellate Court gave its findings is totally erroneous. http://www.judis.nic.in 24
56.In the instant case, Section 43 of Transfer of Property Act, can never come into play since the transaction is void ab initio by statute. The sale in favour of the plaintiff was prohibited under law and no act in future can revive it or make it valid. It is well settled that once a transaction is prohibited under statute, it can never be validated. Consequently, the sale deed is a void document and in Ex.A1, the plaintiff never got any right whatsoever as purchaser. The possession is deemed to remain only with Rengaier, who continued to be the inam holder.
57.The sequence of events reveal that on 23.10.1968, the Settlement Thasildar, by Ex.B2 in SR.No.1360-MI Act - NKT - 68, disallowed the claim of the plaintiff to be recognized as title holder. In the said order dated 23.10.1968, the Settlement Thasildar, No.II, Madurai had conducted an enquiry under Section 11 of Tamil Nadu Minor Inam Abolition Act 30 of 1963, for the claim for ryotwari patta for the inam lands in Survey No.395/2 in T.D.No.537, Kulasekarankottai Village, Vadipatti Taluk, Madurai. It was specifically mentioned that the land was granted for Malaikatti inam sevai for the pagoda of Sri Kadali Narasinga Perumal situated in Ammaya Naickenur Village. It was also stated that the inam lands http://www.judis.nic.in 25 had been taken over by the Government on 15.02.1965 by abolishing the minor inam character and converting the same into ryotwari lands with effect from the coming into force of the Act 30 of 63.
58.It was specifically found that the claim made by the plaintiff V.Vadamalai Rengappan has to be disallowed since he was not the descendant of the original service holder. He had also not produced any valid sale records executed by competent vendors. This order, in Ex.B2 has not been challenged by the plaintiff. This order has effectively nullified his rights over the said lands. It is seen that the copy of this order had also been served on the plaintiff.
59.This conduct of the plaintiff in not challenging the order in Ex.B2 has to be read in conjunction with the averment in the written statement that the plaintiff had suppressed material facts in the plaint. It had been specifically stated in the written statement as follows:
This defendant submits that the plaintiff himself, after realizing that the sale deed is an invalid one he also created some records as if he has donated 1 acre 60 cents for forming a residential colony named after he then Collector "Seetharam Doss". He surrendered possession of the property to the Government and divested himself of title and possession of the property. As a fact the plaintiff utilizing his political influence collected heavy amounts unautherisedly for the said donation from third parties under the guise of obtaining free house site pattas. It is submitted that out the said voluntary act of plaintiff during 1972, the plaintiff has http://www.judis.nic.in 26 knowingly with full knowledge divested himself of whatever right interest and title he had over the properties. On obtaining possession, the Government also converted the land as Natham Promboke and issued pattas in favour of so many third parties. It is quite strange that the plaintiff after being a party for all these things, how has filed the present suit for declaration. Since the plaintiff himself divested his right and possession, he is estopped in law from setting up a contradictory case, as if he is still having title and possession over the properties. Hence at no stretch of imagination, the plaintiff can claim title of possession over the suit properties.
60.By Ex.B3, dated 28.06.1971 signed on 09.11.1971, it was again mentioned that the lands in Survey No.395/2 measuring 3.20 acres in Kulasekarankottai Village, Vadipatti Taluk, Madurai, were inam lands for granted for the purpose of supplying garlands to Kadali Narasinga Perumal Temple at Nilakottai. It was stated that the service holders namely, Rengaier and his son Ponnadi had exercised the option provided under Section 21 (3) of Tamil Nadu Minor Inam Abolition Act 30 of 1963 and were willing to pay the amount payable under Section 21 (4) of the Act and to get themselves relieved of the service burden. The Thasildar, Nilakottai was requested to fix the amount under Rule 33 of the Rules framed under the Act and to recover the amount from them. Act 30 of 1963 is the Tamil Nadu Minor Inams Abolition and Conversion into Ryotwari Act, 1963. Under Section 21 (2) of the said Act, the service holder is bound to continue to render the service. In this case, the service was to provide garlands to the Deity. Under Section 21 (3), he is also entitled to http://www.judis.nic.in 27 ryotwari patta. He will have to exercise the option to pay the amount fixed to the religious institution as provided under Section 21 (4) of the Act and then he will be discharged from the conditions of the service. He also had the option to hold the lands and continue to render the service. In this case, the inamthars S.Rengaier and his son R.Ponnadi decided to pay the religious institution amount specified under Section 21 (4) of the Act. It is under these circumstances that Ex.B3 had been written by the Settlement Thasildar to the Thasildar, Nilakottai seeking determination of the amount under Section 21 (4) of the Act. That amount was determined by Ex.B4 proceedings dated 30.05.1972. It is again reiterated that all these procedures took place only because under Ex.B2, order of the Settlement Thasildar dated 23.10.1968, the sale in favour of the plaintiff had been declared as void. Further, under Section 41 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 and even under Section 35 of the Madras Hindu Religious and Charitable Endowments Act, 1951, the sale in favour of the plaintiff is void ab initio and prohibited by statute.
61.The Settlement Thasildar had fixed a sum of Rs.1563/- as the amount payable for the lands in Survey No.395/2 measuring 3.20 acres. By this time, S.Rengaier had died and his son R.T.Ponnadi was http://www.judis.nic.in 28 alive. By Ex.B12, the Thasildar, Nilakottai, had observed that R.T.Ponnadi had exercised his option under Section 21 (3) of the Act and the quantum had been fixed at Rs.1563/- under Section 21 (4) of the Act. It was also stated that by Chalan No.314 dated 14.08.1972 and by Chalan No.341 dated 16.02.1974, the entire amount had been paid in two installments of Rs.156.30/- and Rs.1406.70/- respectively. It was therefore held that under Section 21 (3) (i) (a) of Tamil Nadu Minor Inam Abolition Act, 1963, the entire consideration had been paid and the land had been discharged from the condition of service. Discharge certificate had also been issued under Ex.B11, the proceedings K.DIS.3095/74, dated 10.03.1974.
62.The Thasildar also observed that R.T.Ponnadi had sold the land to the defendant, Saraswathi by sale deed dated 30.08.1972. It was also observed that the sale was free from encumbrances. In view of the above facts, mutation of the revenue records of the lands in Survey No.395/2 (extent 3.20 acres) of Kulasekarankottai Village to the name of Tmt.G.Saraswathi was ordered. The Revenue Inspector, Nirethan was requested to make necessary entries in the village accounts.
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63.It had been pointed out by the first appellate Court that this order had not been served on the plaintiff. I hold that there was no necessity to serve the said order on the plaintiff. The sale in favour of the plaintiff had been declared as null and void even under Ex.B2. Those proceedings were served to the plaintiff. He did not take any action whatsoever. The plaintiff had no existing right. Subsequent proceedings had been initiated in accordance to the proceedings laid down by law. I find no infirmity in the same.
64.The case of the plaintiff is that since R.T.Ponnadi had been granted original patta, the ground on which, the sale deed executed by his father S.Rengaier had been declared as void has now been regularised by the Government and consequently the benefit under Section 43 of the Transfer of Property Act should accrue to the plaintiff.
65.I disagree with such contention raised by the learned counsel for the plaintiff.
66.In the first place, the sale deed in favour of the plaintiff was void ab initio by statute and not by act of one of the parties. A transaction, which is void by statute can never be validated by any http://www.judis.nic.in 30 authority. That transaction has been done in defiance of the law laid down under the statute. In this case, under Section 35 of the Madras Hindu Religious and Charitable Endowments Act, 1951, equivalent to Section 41 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959.
67.The said provision specifically declares as null and void any sale of inam land. The sale is barred by statute since in this case, the nature of the lands was service inam for providing garlands to the Deity, Sri Kadali Narasinga Perumal. I hold that consequently benefit under Section 43 of the Transfer of Property Act, will never ennure to the plaintiff.
68.On introduction of the Tamil Nadu Minor Inam Abolition Act 30 of 1963, the service inam lands had been converted into ryotwari patta by the Government and option was given to the inamthars to either continue the service or to pay the compensation as fixed under Section 21 (4) of the Act. The inamthars, S.Rengaier and his son Ponnadi exercised the option as fixed under Section 21 (4) of the Act and they paid the amount determines. They were also granted ryotwari patta. They had a right to sell the land. http://www.judis.nic.in 31
69.They had a right to sell the land because they opted to release the land from the Kattalai of the service inam. They sold the land to the defendant. The defendant acquired perfect title. The plaintiff had not challenged the earlier order under Ex.B2. These facts compel me to hold that the findings of the lower appellate Court has to be interfered with.
70.The first substantial question of law was whether the lower appellate Court was right in holding that the plaintiff could take the benefit under Section 43 of Transfer of Property Act, when the sale of service inam land is void as opposed by public policy. The discussion above reveals that the lower appellate Court was wrong in holding that the plaintiff could take the benefit under Section 43 of Transfer of Property Act. The sale was void under statute and it can never be regularised and Section 43 of Transfer of Property Act, can never be pressed into service.
71.The second substantial question of law was whether the lower appellate Court was right in allowing the appeal when the land is vested with the Government under the Tamil nadu Act, 30 of 1963. Again I hold that the lower appellate Court was wrong in allowing the appeal. As pointed out above, the service inam had been abolished by http://www.judis.nic.in 32 the Tamil Nadu Minor Inam Abolition Act 30 of 1963 and option was given to the service holder to either continue the service or to pay the compensation and discharge the land from the service. In this case, the inamthars opted to discharge the land and pay the compensation. The compensation was fixed and the compensation was paid and then the lands were sold to the defendant. The sale had been upheld by the Thasildar. Consequently, the judgment of the lower appellate Court requires interference.
72.For all the reasons stated above, I have no hesitation in setting aside the judgment and decree in A.S.No.185 of 1995 dated 01.11.1996 passed by the Principal District Judge, Madurai. The judgment and decree in O.S.No.393 of 1993 on the file of the District Munsif Court, Madurai, is confirmed. This second appeal is allowed with cost.
25.10.2018
Index : Yes / No
Internet : Yes / No
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To
1.The Principal District Judge,
Madurai.
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2.The District Munsif,
Madurai.
3.The Section Officer, (2 copies)
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
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C.V.KARTHIKEYAN, J
mm
S.A.(MD) No. 632 of 1997
25.10.2018
http://www.judis.nic.in