Madras High Court
Subaida And Habeeba vs K.A.M.P. Meerania Muslim Educational ... on 18 June, 2005
Equivalent citations: AIR2006MAD112, 2005(3)CTC603, AIR 2006 MADRAS 112, 2006 (3) AKAR (NOC) 299 (MAD) 2006 AIHC NOC 107, 2006 AIHC NOC 107, 2006 AIHC NOC 107 2006 (3) AKAR (NOC) 299 (MAD), 2006 (3) AKAR (NOC) 299 (MAD)
Author: M. Karpagavinayagam
Bench: M. Karpagavinayagam
JUDGMENT M. Karpagavinayagam, J.
1. Maria Misria, the appellant in S.A. No. 1092 of 2004 as Secretary representing K.A.M.P.Meerania Educational Society, Kalakad, filed a suit for declaration as against Subaida and Habeeba, the appellants in S.A. No. 439 of 2004 that the plaintiff representing the Society alone is entitled to act as Secretary in O.S. No. 701 of 1996.
2. The suit ultimately was dismissed. However, in the appeal filed by the plaintiff in A.S. No. 94 of 1999, the lower appellate Court modified the decree and gave the lesser relief in favour of the plaintiff. Aggrieved over this, the defendants 1 and 2 have filed S.A. No. 439 of 2004 before this Court. As the plaintiff was not satisfied with lesser relief, she filed S.A. No. 1092 of 2004 seeking for entire relief. Both these appeals are heard together and common judgment is being rendered.
3. For the convenient sake, Subaida and Habeeba, the appellants in S.A. No. 439 of 2004 are referred to as the defendants and Maria Misria, the appellant in S.A. No. 1092 of 2004 as the plaintiff.
4. The case of the plaintiff is as follows:
"(a) K.A.M.P.Meerania Muslim Kalvi Sangam was floated in the year 1947. The Sangam was started as a Society after registration by K.A. Meera Sahib and his brother K.A. Peer Mohamed. They were the President and the Secretary respectively. The Society maintained the schools. The Secretary was in charge of the schools. The posts of President and Secretary are hereditary and the respective heirs alone can succeed to the respective office. In 1967, K.A. Peer Mohamed, the Secretary died. There are three daughters left by K.A. Peer Mohamed, the Secretary as his heirs. The eldest daughter Maria Misria is the plaintiff. Subaida and Habeeba, the other daughters are the defendants 1 and 2. On the death of K.A. Peer Mohamed, as per the provisions of the Yadast, the three daughters are entitled to hold the post of Secretary. Accordingly, in 1967, a resolution was passed to that effect by the Society. However, another resolution was passed in the year 1968 to the effect that each of the daughters once in three years by rotation shall hold the post of Secretary. In pursuance of this resolution, Maria Misria, the plaintiff became the Secretary in 1968.
(b) Since the defendants did not make claim after three years, she continued to be in that post till 1980. The former Secretary K.A. Peer Mohamed during his lifetime appointed one M.A. Peer Mohamed as Correspondent. K.A. Meera Sahib, the President died in 1975. After his death, a misunderstanding arose between Maria Misria and K.A. Peer Mohamed, the Correspondent. So,the Correspondent filed a suit in O.S. No. 140 of 1975 for declaration that Maria Misria and her husband are not Members of the Society and for permanent injunction as against them.
(c) Ultimately, the suit was dismissed holding that Maria Misria and her husband are Members and M.A. Peer Mohamed is Correspondent. Then, two appeals were preferred in A.S. No. 239 of 1978 and A.S. No. 250 of 1978. Both were ultimately dismissed. At this stage, for the first time, Habeeba, the second defendant claimed the right of Secretaryship and tried to interfere in the administration with the help of the said M.A. Peer Mohamed, the Correspondent. Therefore, the plaintiff filed a suit in O.S. No. 141 of 1983 for permanent injunction against the said M.A. Peer Mohamed and others. Habeeba, the second defendant also filed O.S. No. 42 of 1984 claiming Secretaryship on rotation. However, these suits were dismissed.
(d) Against the same, the appeals were preferred in A.S. No. 106 of 1992 and A.S. No. 107 of 1992. Ultimately, the lower appellate Court in A.S. Nos. 107 of 1992 which was filed by Habeeba against O.S. No. 42 of 1984 held that Habeeba was entitled to act as Secretary on rotation and in A.S. Nos. 106 of 1992 filed by K.A. Peer Mohamed as against the decree in O.S. No. 141 of 1983 held that K.A. Peer Mohamed continued to be the Correspondent.
(e) Against these judgments, the second appeals in S.A. Nos. 798 and 799 of 1994 were filed before this Court. However, this Court dismissed both the appeals holding that the female heirs of the President and Secretary are entitled to the Secretaryship in rotation. The S.L.P. filed also was dismissed. Therefore, as per the judgment in A.S. Nos. 107 of 1992 and S.A. No. 798 of 1994, the plaintiff is entitled to the post of Secretary between 1995 and 1998. In view of the subsequent developments which would nullify the resolution, the plaintiff alone is entitled for declaration as well as permanent injunction as against the defendants 1 and 2. Hence, the suit in O.S. No. 701 of 1996."
5. The case of the defendants is as follows:
"The plea of the plaintiff that there was no claim by the defendants to the post of Secretary till 1980 is wrong. On the other hand, the plaintiff refused to hand over the charge to her sisters after the expiry of the period. The claim that the plaintiff is entitled to act as a turn Secretary of the Society for the period from 1995 March is thoroughly misconceived. The plaintiff had not adhered to the turn system in respect of the office of Secretary as per the resolutions passed in the years 1967 and 1968 according to which, the plaintiff would be entitled to hold the post only for three years. But admittedly, the eldest sister Maria Misria held the post continuously for about 26 years without permitting the other two sisters to act as Secretary of the Society during the respective turn periods. As such, Maria Misria is legally estopped from claiming any right over turn system for the period from 1995 to 1998. Though the suit in O.S. No. 141 of 1983 was decreed in favour of Maria Misria, it was subsequently reversed in A.S. No. 106 of 1992 by the District Court which was confirmed in S.A. No. 798 of 1998. Therefore, the suit is liable to be dismissed."
6. In the trial Court, on the side of the plaintiff, P.Ws.1 to 3 were examined and Exs.A1 to A170 were marked and on behalf of the defendants, D.Ws.1 to 5 were examined and Exs.B1 to B85 were marked.
7. Along with this suit, the plaintiff's son Mannan Mohamed filed another suit in O.S. No. 632 of 1996 for declaration, supporting her mother.
8. The trial Court after having tried both the suits together dismissed the same through a common judgment. As against O.S. No. 701 of 1996, Maria Misria filed A.S. No. 94 of 1999 and Mannan Mohamed, her son as against O.S. No. 632 of 1996, filed A.S. No. 93 of 1999.
9. The lower appellate Court dismissed A.S. No. 93 of 1999 filed by Mannan Mohamed, but partly allowed the appeal filed by Maria Misria in A.S. No. 94 of 1999 by the judgment dated 4.2.2004 giving the lesser relief holding that Maria Misria would assume office as Secretary and she shall hold the same for 3 years either from the date of the lower appellate Court's judgment or from the date of her assuming office and granted permanent injunction restraining the other two sisters, the defendants 1 and 2 from interfering with the administration of school while Maria Misria is acting as Secretary during the period.
10. Having aggrieved over the same, the defendants 1 and 2 have filed S.A. No. 439 of 2004 and the plaintiff Maria Misria also has filed S.A. No. 1092 of 2004 as she is not satisfied with the lesser relief.
11. In both the appeals, the following substantial questions of law were formulated by this Court:
1) Whether the lower court can ignore the pleadings of the parties and without reference or discussion of the evidence let in, grant a relief even under Order 41 Rule 33 C.P.C., which provision itself is circumscribed by limitations?
2) Whether the lower court is right in giving a decision declaring that the members of the Society consisting of persons, who are included by Mrs. Maria Misria, when the finding in A.S. Nos. 106 and 107 of 1992 on the file of District Court, Tirunelveli and as confirmed by High Court in S.A. Nos. 798 and 799 of 1994 is directly against and operate as res judicata?
3) Is the lower court right in granting declaration, which would affect the rights of third parties, who are not parties to the suit, more so when defendants 3 and 4, who have staked their claim to the office of President and Member respectively were given up by the plaintiff?
4) Whether when the operation of the decree runs against the provisions of statute and the previous judgment, particularly the judgment in S.A. Nos. 798 and 799 of 1994 would operate as res judicata?
5) Whether the judgment in S.A. Nos. 798 and 799 of 1994 would be hit by the principles of res judicata in view of the judgment in S.A. No. 906 of 1980?
12. On the strength of the above substantial questions of law, both the counsel would argue the matter at length.
13. At this stage, it is brought to the notice of this Court that during the pendency of the appeals, the appellants, the defendants 1 and 2 filed an application in C.M.P. No. 3344 of 2004 seeking for interim stay of the operation of the decree in A.S. No. 94 of 1999. After hearing the counsel for parties, the same was granted by the order dated 30.4.2004 by this Court directing Subaida, first defendant to take over office for three years and other sisters, viz., Habeeba and Maria Misria to assume office in rotation thereafter. It was further observed in the said order that the said arrangment is subject to the final result of these appeals. As against this interim order, the plaintiff Maria Misria filed S.L.P. No. 10690 of 2004 against this interim order and the Supreme Court by the order dated 31.5.2004 dismissed the S.L.P. and requested this Court to hear the second appeals and finally dispose of expeditiously. That is how, the matter is taken up for final disposal.
14. Before going into the issue in question raised in this case, it would be worthwhile to refer to the relevant chronological events leading to the filing of these appeals:
"(a) A Society by name K.A.M.P.Meerania Muslim Educational Society was formed on 4.8.1947. After its registration on 11.8.1947, the Society took over the management of two schools with avowed object of imparting education to the poor students. The Society consisted of 7 members. The same was managed by a Managing Committee consisting of 3 members out of 7 members:
1. Janab K.A. Meera Sahib : President
2. Haji K.A. Peer Mohamed : Secretary
3. Janab M.Asraf Ali : Member
(b) According to Clause 4, the two posts, namely President and Secretary belong to the families of K.A. Meera Sahib and K.A. Peer Mohamed, the brothers. As such, they shall be held by the heirs of the respective members.
(c) On 1.6.1967, K.A. Peer Mohamed who was the Secretary died. He had three daughters by name, (1)P. Maria Misria, (2) P. Subaidha and (3) P. Habeeba.
(d) On 5.6.1967, a resolution was passed in a meeting in the Society to the effect that all the three daughters were taken to be as legal heirs in the place of their father K.A. Peer Mohamed as Secretaries of the Society jointly. However, another resolution was passed on 10.6.1968 by the Society stating that the three daughters cannot hold a single post at the same time and therefore, they can function in rotation once in three years each. In pursuance of the said resolution, P. Maria Misria became the sole Secretary.
(e) On 28.5.1975, K.A. Meera Sahib, the founder President died leaving behind him two sons (1) Dawood and (2) Batcha.
(f) Even though three years period was over, the eldest daughter Maria Misria continued to cling on to the post of Secretary. The sons of K.A. Meera Sahib were also not allowed to hold the post of President. With the result, difference of opinion arose between Maria Misria and K.A. Asraf Ali, Managing Committee Member, and M.A. Peer Mohamed, the Correspondent. Resultantly, Asraf Ali, the two sons of late President K.A. Meera Sahib and the Correspondent M.A. Peer Mohamed filed a suit in O.S. No. 140 of 1975 for declaration that the said Maria Misria and her husband Majeed are not members of the Society and consequently, for a permanent injunction restraining them from interfering with the administration of the Society. However, the suit was dismissed on 29.6.1978 holding that Maria Misria is the Secretary and her husband Majeed is the Member of the Society.
(g) Asraf Ali, the Managing Committee Member and M.A. Peer Mohamed, the Correspondent filed an appeal in A.S. Nos. 239 of 1978. Maria Misria filed Cross Appeal in A.S. No. 250 of 1978. Both the appeals were dismissed by the common judgment dated 10.12.1979.
(h) Aggrieved by the judgment in A.S. No. 239 of 1978, Asraf Ali and another preferred second appeal in S.A. No. 906 of 1980 before this Court and the same was dismissed on 19.12.1980 confirming the judgment and decree of both the Courts below.
(i) In all the above proceedings, it was held that Maria Misria can act as Secretary of the Society in a turn system as per the resolution dated 10.6.1968. Even then, Maria Misria continued to act as Secretary denying the rights of other sisters by not following the turn system. During this period of her holding the office, she arranged to pass resolutions by bringing in her two sons as members of the Society. At that time, M.A. Peer Mohamed, the Correspondent of the school attempted to interfere with the rights of Maria Misria. Therefore, she in the name of the Society filed a suit in O.S. No. 141 of 1983 against M.A. Peer Mohamed on the ground that the Correspondent on 5.3.1981 surrendered his Correspondentship to her and therefore, he must be restrained from interfering with the administration of the Society by a decree of permanent injunction.
(j) Mrs. Habeeba, the sister of Maria Misria on behalf of the Society filed O.S. No. 42 of 1984 for declaration that the said Habeeba, Maria Misria and Subaida are entitled to have the right to work as Secretary in the Society once in three years as per the resolution dated 10.6.1968.
(k) The above two suits were jointly tried by the Court. The trial Court dismissed the suit in O.S. No. 42 of 1984 filed by Habeeba and decreed the suit of Maria Misria against M.A. Peer Mohamed in O.S. No. 141 of 1983.
(l) Aggrieved by the above judgment, Habeeba filed A.S. No. 107 of 1992 and M.A. Peer Mohamed filed A.S. No. 106 of 1992 before the lower appellate Court. The lower appellate Court on 31.5.1994 allowed the appeal in A.S. Nos. 107 of 1992 holding that the sisters are entitled to rotation management once in three years and directing Habeeba to take over the Secretaryship and also allowed the appeal in A.S. Nos. 106 of 1992 filed by M.A. Peer Mohamed holding that he would continue to hold the Correspondent post. In pursuance of this judgment, on 1.7.1994, Habeeba took over the administration of the Society.
(m) Challenging both the judgments, Maria Misria on 12.7.1994 filed two appeals before this Court in S.A. Nos. 798 and 799 of 1994. Both the appeals were heard and dismissed by a common judgment dated 28.6.1995. While disposing the appeals, this Court held that Maria Misria having taken office of Secretaryship in pursuance of the resolution of the year 1968 cannot claim the post for ever and upheld the judgment of the appellate Court rendered in A.S. Nos. 106 and 107 of 1992.
(n) Maria Misria thereafter filed Civil Appeal No. 5546 of 1996 before the Supreme Court and the same was dismissed on 12.1.1996.
(o) Immediately thereafter, i.e. on 18.1.1996, Maria Misria representing the Society started the present litigation by filing the suit in O.S. No. 701 of 1996 seeking for declaration that she is Secretary as per the rotation system between 1.4.1995 and 31.3.1998 claiming her right under the resolution of the year 1968 as against Subaida and Habeeba, her sisters and Dawood and Batcha, the sons of the founder President. Then, the suit was renumbered as O.S. No. 701 of 1996.
(p) Later, the plaint was amended to the effect that the defendants are not the members of the Society and they should not interfere with the affairs of the Society on the basis that they were never members of the Society and the resolution of the year 1968 got already nullified.
(q) In the meantime, the two sons of the founder President, viz., Dawood and Batcha, the defendants 3 and 4 were given up.
(r) Meanwhile, Mannan Mohamed, the son of Maria Misria claiming himself as President of the Society filed a suit in O.S. No. 632 of 1996 for declaration in support of the claim of Maria Misria, the plaintiff in the other suit.
(s) The above suits in O.S. Nos. 632 of 1996 filed by Mannan Mohamed and 701 of 1996 filed by Maria Misria were jointly tried and a common judgment was rendered on 26.2.1999 dismissing the suits. It was held in O.S. Nos. 632 of 1996 that Mannan Mohamed has no locus standi to represent the Society as he could not be the President in view of the Clause 4 of Yadast which declares that the respective heirs of the President and the Secretary alone shall hold the respective posts after the death of the original incumbents. It was held in O.S. Nos. 701 of 1996 that Maria Misria is not entitled to the relief sought for as her original claim and the present claim are mutually contradictory.
(t) As against the decree dismissing the suit in O.S. Nos. 632 of 1996, Mannan Mohamed filed A.S. No. 93 of 1999 and as against the dismissal decree in O.S. No. 701 of 1996, Maria Misria filed A.S. No. 94 of 1999 before the District Court. The District Court though accepted the turn system in pursuance of the resolution of the year 1968, partly allowed the appeal in A.S. No. 94 of 1999 in favour of Maria Misria and however dismissed the other appeal in A.S. No. 93 of 1999 filed by her son through the common judgment dated 4.2.2004. In this judgment, it was directed that Maria Misria to be the Secretary for 3 years from the date of the appellate Court judgment dated 4.2.2004 or from the date of taking charge.
(u) Challenging the same, Subaida and Habeeba have filed second appeal in S.A. No. 439 of 2004 on 24.2.2004 and as indicated above, stay of the operation of the decree was ordered on 30.4.2004 by this Court allowing Subaida to continue for three years and thereafter, the other two sisters in turn system.
(v) On 4.5.2004, Maria Misria even though she got some relief from the first appellate Court, has chosen to file second appeal in S.A. No. 1092 of 2004 having not satisfied with the relief as against A.S. No. 94 of 1999. There is no second appeal as against A.S. No. 93 of 1999.
(w) Thereupon, challenging the stay order, Maria Misria filed S.L.P. No. 10690 of 2004 before the Supreme Court and the same was dismissed on 31.5.2004 by the Supreme Court with a request for expeditious disposal of the second appeals before this Court.
15. The trial Court arrived at the following conclusions:
(1) The provisions of the Yadast are binding on the parties. Clause 4 of the Yadast declares that the founder President K.A. Meera Sahib shall be the first President and his brother K.A. Peer Mohamed shall be the Secretary and both these posts will be succeeded by the respective heirs of the first incumbents. Therefore, the two sons Dawood and Batcha left behind him by the original founder President K.A. Meera Sahib alone are entitled to succeed to the post of President. Consequently, the induction of Mannan Mohamed who is claiming himself to be the President is illegal and he is not entitled to represent the Society as President as the clause in Yadast would disentitle him from claiming Presidentship.
(2) As per the Yadast, there were originally 7 members who constituted the General Body of the Sangam and out of them, the President, Secretary and one Ashraf Ali constituted the Executive Committee. So, the induction of A.M. Meera Sahib, another son of the plaintiff Maria Misria, and one Velayudam Pillai who is non-muslim member in the place of founder Member cum Correspondent M.A. Peer Mohamed is illegal. The removal of Ashraf Ali, the founder Member, also is not legal.
(3) The induction of one Badurusman in the place of founder Member K.K.Meera Sahib is equally invalid. The induction of K.M.S.Dawood, the eldest son of the founder President K.A. Meera Sahib through the resolution signed by the founder Managing Committee Member Ashraf Ali, M.A. Peer Mohamed and others is perfectly valid. Similarly, the induction of one L.M.A. Haja Mohideen in the place of Ashraf Ali, who died, was held to be valid as the resolution was signed by the President K.M.S.Dawood, the son of the founder President and Habeeba, the daughter of the founder Secretary.
(4) The three sisters are entitled to act as Secretary in rotation as per the resolution of the year 1968. The suit filed by the plaintiff is hit by the principles of res judicata, as in the earlier proceedings, namely in A.S. Nos. 106 and 107 of 1992 and S.A. Nos. 798 and 799 of 1994, it has been categorically held that each of the daughter is entitled to act as Secretary for a period of 3 years in rotation.
(5) The plaintiff has no right to file the suit on the date on which she filed the suit as she was not holding the post of Secretary. She had been in the office of Secretaryship from 1968 onwards in derogation of the rights of her other two sisters for 26 years and as against the provisions of the Yadast and resolution.
16. The finding and conclusion of the lower appellate Court setting aside the judgment and decree of the trial Court are as follows:
(1) The daughters of the founder Secretary, namely the plaintiff and the defendants are entitled to act as Secretaries in rotation as per the resolution of the year 1968.
(2) The documents for the period from 1978 to 1990 in Forms 6 and 7 were filed by the plaintiff only. As per the records, A.M. Mannan Mohamed, the son of the plaintiff Maria Misria is the President and the plaintiff Maria Misria is the Secretary. The defendants filed returns only after 1994. Only after she became the Secretary, she inducted members. Therefore, the plaintiff Sangam alone consists of true members and the Sangam projected by the defendants consisting of different members is only a myth.
(3) The plaintiff can assume office from the date on which a resolution is passed by the members belonging to the Sangam of plaintiff and from that date she could hold office for three years. The defendants 1 and 2 would not be the members of the Sangam.
(4) The plaintiff Sangam shall decide by resolution as to who is the Correspondent and on such resolution being passed the Educational Authorities shall act.
17. As noted above, the learned counsel for the parties have been fully heard and the records have been carefully perused. On going through the entire records and the judgments of the Courts below and on hearing the counsel for the parties, I am of the considered opinion that the judgment and decree passed by the lower appellate Court allowing the appeal in A.S. No. 94 of 1999 partly by modifying the decree passed by the trial Court are not sustainable. The above view of mine is based upon the following circumstances.
18. The Sangam was established by K.A. Meera Sahib and his brother K.A. Peer Mohamed. K.A. Meera Sahib was the President and K.A. Peer Mohamed was the Secretary as per the existing rules and Yadast. The Sangam belongs to the family of the President and Secretary. The Secretary died in 1967. Then resolution was passed in 1967 that all the three daughters of K.A. Peer Mohamed shall carry on the administration as Secretaries. Since there was practical difficulty, another resolution was passed in 1968 by which all the three daughters would act as Secretary in rotation once in three years. Accordingly, the first daughter Maria Misria became the Secretary of the Society. Since then she has been holding the post of Secretary. Even though three years period was fixed, the administration has not been handed over to the other sisters.
19. In the meantime, K.A. Meera Sahib, the President died. M.A. Peer Mohamed was the Correspondent then. There was a misunderstanding between the Correspondent and other members on one side and Maria Misria on the other side. The Correspondent and another member filed a suit in O.S. No. 140 of 1975 for declaration and injunction as against Maria Misria. The suit was dismissed. As against the decree and judgment, the appeal in A.S. No. 239 of 1978 was filed. The appeal also was dismissed. Then, second appeal was filed in S.A. No. 906 of 1980. However, the same was dismissed. In 1981, Maria Misria, the Secretary filed a suit in O.S. No. 141 of 1983 for permanent injunction as against M.A. Peer Mohamed since he interfered with administration of the Society even after surrendering the possession of the post. In 1984, Habeeba, her sister filed a suit in O.S. No. 42 of 1984 for declaration that she is entitled to Secretary in rotation once in three years.
20. Both the suits were tried together. The suit in O.S. No. 42 of 1984 was dismissed and the suit in O.S. No. 141 of 1983 was decreed in favour of the plaintiff. Then, Habeeba preferred an appeal in A.S. No. 106 of 1992 and A.S. No. 107 of 1992. The appeals were allowed by the District Court holding that Habeeba, the second daughter is entitled to the Secretary once in three years in rotation and Maria Misria should render accounts from 1968.
21. As against the said decree and judgment, Maria Misria filed two appeals in S.A. Nos. 798 and 799 of 1994. This Court ultimately held that the daughters of K.A. Peer Mohamed, the founder Secretary, are entitled to function as the Secretary once in three years in rotation and therefore, confirmed the decree and judgment of the lower appellate Court. As against the same, Maria Misria preferred S.L.P. before the Supreme Court and the same came to be dismissed. In pursuance of the said order, Habeeba assumed charge on 1.7.1994.
22. Unfortunately, even though the matter was given a quietus by the Supreme Court that all the daughters of the erstwhile Secretary are entitled to be the Secretary of the Society once in three years by rotation, Maria Misria filed another suit in O.S. No. 706 of 1996 claiming declaration that she is entitled to function as the Secretary from 1995 to 1998 by way of rotation. The further irony is that her husband also filed another suit claiming that he is the president of the Society.
23. Both these suits were tried together. Ultimately, the suits were dismissed. Then, Maria Misria challenging the same, filed an appeal in A.S. No. 94 of 1999. The appellate Court while partly allowing the appeal, had declared that Maria Misria is entitled to function as the Secretary from the date of the decree of the appellate Court or from the date when she assumes office for a period of three years. Hence, these appeals by the defendants and the plaintiff. The above facts cannot be disputed, as they are the established facts through the materials.
24. But, the serious lacunae on the part of the lower appellate Court which is noticed is that the lower appellate Court has granted the relief, which was not actually asked for, to the effect that she is entitled to the Secretary on rotation basis for a period of three years either from the date of the decree or from the date when she assumes office. Admittedly, this relief, though sought for in the original unamended plaint, has not been pressed and a new relief was sought in the amended plaint.
25. Further, as correctly pointed out by the trial Court, the point relating to the assuming office as Secretary by the daughters on rotation basis has already been decided in the earlier proceedings by the High Court which was confirmed by the Supreme Court. Even then, Maria Misria, the first respondent herein, chose to file the suit asking for declaration that she is entitled to act as Secretary from March 1995 to March 1998.
26. It is not in dispute that she was holding the office as Secretary from the year 1968 to 1994. It cannot also be disputed that Habeeba in pursuance of the orders by the lower appellate Court took charge as Secretary on 1.7.1994. Even though she is entitled to hold office for three years from the year 1994, Maria Misria has chosen to file the suit in 1995 for such a declaration to establish her right to act as Secretary from March 1995 to March 1998. The said claim was on the basis of the calculation on rotation basis from the year 1968. Strangely, the lower appellate Court has accepted the said calculation and held that she is entitled to act as Secretary and not from March 1995 to March 1998 as she claimed, but from the date of assumption of the charge as Secretary for three years. As stated above, admittedly, this is not the decree asked for in the plaint.
27. As pointed out by the counsel for the appellant, the plaint itself has been amended by adding two paragraphs, namely 21-A and B in the plaint. As per the amendment, the plaintiff asked for declaration that the resolution of the year 1968 was not acted upon and therefore, the plaintiff's sisters, viz., Habeeba and Subaida were not entitled to the relief granted in A.S. No. 107 of 1992 and as such, they are not Members of the Society and hence, they cannot interfere in the internal administration.
28. Thus, the present claim of the plaintiff is that the resolution of the year 1968 was not acted upon and as such, she alone would be the Secretary of the Sangam for ever. This claim is virtually against the finding given by the District Court and the High Court which was confirmed by the Supreme Court in the earlier proceedings with reference to the rotation basis. In other words, her original prayer is for declaration that she is entitled to assume office from March 1995 to March 1998 on rotation basis as per the resolution passed in the year 1968 and the present prayer is that she has got exclusive right to hold Secretary post for ever.
29. Thus, there are two sets of contradictory claims in the plaint, one recognising and admitting that she is entitled to be the Secretary in rotation for three years falling in line with the resolution dated 10.6.1968. Other claim which is contrary that the resolution dated 10.6.1968 is nullified and as such, rotation basis has no valid basis and she alone is the Secretary for ever.
30. According to the counsel for the appellants, Maria Misria, the plaintiff has given up her claim to be in office of Secretaryship in rotation and opted to amend the plaint into one for declaration that the defendants are not members and as such, she cannot be allowed to blow hot and cold. Since there is contradictory claim in the plaint itself, she is not entitled to any relief much less the one granted to her by the lower appellate Court.
31. Even though this contention has been refuted by the counsel for the respondent, this Court is unable to reject the said contention, especially for the reason that though her original prayer in the plaint was for declaration that she is entitled to be Secretary for three years on rotation basis as per the findings of the High Court confirmed by the Supreme Court, she has chosen to take up a different stand by claiming that the resolution in the year is nullified by the subsequent development and therefore, she alone can have a right to claim as Secretary of the Society exclusively. This, in my view, is virtually a new claim, making a new plea on the basis of the new cause of action.
32. The trial Court has made a detailed discussion and commented against the conduct of the plaintiff, the respondent herein, in raising various contentions at various occasions which are mutually contradictory. It also correctly concluded that the question relating to the Secretaryship on rotation basis has already been decided and as such, there cannot be a fresh suit by the plaintiff who has lost her battle up to the Supreme Court in an effort to retain the position as Secretary of the Society for ever.
33. Admittedly, she has been Secretary from 1968 onwards and has not taken any steps to hand over the post to other sisters after the first period of three years was over and on the other hand, she has been contesting by filing suits one after another either by herself or by her husband and through her son to see that her position as Secretary is retained.
34. As a matter of fact, the lower appellate Court rejected the contention of the plaintiff stating that the resolution of the year 1968 giving the right of assuming the office on rotation basis has not been acted upon or nullified. Such being the case, why should the lower appellate Court modify the decree in favour of the plaintiff stating that she is entitled to be Secretary for three years from the date of assumption of charge without taking note of the fact that Habeeba took charge on 1.7.1994 as per the orders in the earlier proceedings, confirmed by the High Court. In other words, the claim for the relief of rotation of Secretaryship which has been abandoned by the plaintiff through the amendment of the plaint has been granted by the lower appellate Court.
35. According to the counsel for the appellants, when the plaintiff herself does not want to have such a relief and when no argument was advanced for such a relief, the lower appellate Court cannot make out a new case and grant a relief which has been given up.
36. This submission fully deserves acceptance. As a matter of fact, it is quite strange to see that the lower appellate Court decided the question as to who are all the Members of the Society and who are all not the Members. There is no pleading or proof to that effect. On the other hand, there is proof to show the induction of the plaintiff and the defendants as Members was by the resolution dated 5.6.1967. It is an admitted fact that as per the resolution dated 5.6.1967, all the three daughters, viz., Maria Misria, Habeeba and Subaida were inducted as Members. A non-member cannot become the Secretary. Hence, the relief that is granted with reference to the names of the persons who were competent to become Secretary was not only not pleaded but also not grantable because it is opposed to Yadast.
37. In Virasvami Gramini v. Ayyasvami Gramini (1 M.H.C.R.477), it is observed as follows:
"The Courts are bound to take into consideration all the rights of the parties to a suit, both legal and equitable, and give effect thereto by their decree, as far as possible, they are not at liberty to grant a either not prayed for in the plaint, or that does not naturally flow from the ground of claim as stated in the plaint."
38. In Govindaraj v. Kandaswami Goundar and Anr. (A.I.R.1957 MADRAS 186), it is held as under:
"It is clear law that the plaintiff cannot be allowed to abandon his own case, adopt that of the defendants and claim relief on that footing."
39. In Ramdayal v. Junmenjoy Coondoo (I.L.R.14 CALCUTTA 791 (FB), it is observed thus:
"It would certainly be an unusual thing to allow a plaintiff, who has alleged one state of facts, as against the defendant who has denied that case and alleged another state of facts, to turn round and ask to be allowed to carry on the suit and claim relief on the ground that the defendant's statement of facts was true and his own, false."
40. In Nagayasami Naidu and Ors. v. Kochadai Naidu and Ors. (A.I.R.1969 MADRAS 329), it is held as follows:
"A party cannot be awarded relief on a basis not pleaded by him and on which there is no issue, merely taking advantage of some statements in the pleadings or in the evidence made or given for a different purpose and with reference to a different issue."
41. In Arunachalam Pillai v. Ramu Mudaliar and 3 Ors. (1998(2) L.W.439), it is observed thus:
"When the parties are not at issue and the relief granted by the Lower Appellate Court is neither incidental to the main relief not to the issue, the relief granted by the Lower Appellate Court was in excess of its jurisdiction. The relief does not flow either from the plaint claim or on the basis of any admission of the defendants. In such case, the Court cannot grant a relief."
42. In view of the above observations of the various High Courts and also of the discussion, the relief granted by the lower appellate Court is excessive and wrong.
43. Another flaw committed by the lower appellate Court is in granting declaration as to which is the true Society. That is not the issue raised in these cases. There is no pleading at all either in the plaint or in the written statement giving rise to the contention as to which of the Societies is a true one. It is the case of both parties that there is only one Society. The plaintiff wanted declaration that the defendants through the amendment are not Members of the Society. On the other hand, the defendants' case is that they are the Members of the Society and they can hold the position as Secretary on rotation basis. While so, there is no necessity to give declaration that the plaintiff's Society is a true Society. This sort of declaration granted by the lower appellate Court cannot be considered to be a lesser relief, but so to say that it is a larger relief even without pleading.
44. Further, it is noticed that the suit filed by Mannan Mohamed, the son of Maria Masria, in O.S. No. 632 of 1996 was dismissed and the same was confirmed by the appellate Court. Having confirmed the dismissal of the suit, why should the lower appellate Court grant the relief as to the declaration as to which is the true Society and who is the President of that Society, even though the claim of Mannan Mohamed that he is the President has been rejected by both the trial Court and the lower appellate Court? There is no answer for this.
45. The learned counsel for the respondent would incidentally submit that appeal cannot be filed against mere findings. This is not tenable since the appeal filed by the plaintiff before the lower appellate Court was allowed in part giving the lesser relief, which is detrimental to the interest of the defendants and as such, they are entitled to file the appeal.
46. As pointed out by the counsel for the appellants, the trial Court in paragraph 37 of the judgment, has given elaborate reasons and correctly concluded that the prayer of the respondent (Maria Misria) for declaration that the appellants 1 and 2 are not the Members of the Society and therefore, they should not be allowed to interfere with the administration of the school by the plaintiff is not sustainable. On the other hand, the lower appellate Court having found that the plaintiff was acting as Secretary from 1968 to 1994 and having rejected the fresh claim that the plaintiff alone would be entitled to hold the post of Secretary and having held that the second appellant Habeeba became the Secretary of the Society in 1994 by rotation, has misled itself by giving a decree in favour of the plaintiff to hold the post of Secretary for three years.
47. From the perusal of the entire records, it is apparent that the plaintiff was functioning as Secretary from 1968 to 1994 for a period of 26 years and only on the orders of the Court, she allowed the appellants to take up administration from 1994 onwards. The trial Court accepted the continuance of the appellant as Secretary. However, the lower appellate Court has taken a different view that the plaintiff is entitled to be the Secretary of the Society from the date of the decree or from the date of taking charge of the said post.
48. Further, the plaintiff having enjoyed the position of Secretary for a period of 26 years from 1968 to 1994, did not care to give any respect either to the resolution passed in the year 1968 or to the orders passed by the Courts in the earlier proceedings by not allowing the other sisters to become Secretary of the Society. Thus, it is clear that the plaintiff having admitted that she and the appellants are the daughters of K.A. Peer Mohamed, the founder Secretary, and they are also entitled to administer the Sangam once in three years by rotation, has flagrantly violated the Yadast of the Sangam and has failed to honour the resolution passed in her presence even though she was allowed by the other sisters to continue to take up the position as Secretary and continued as Secretary for long number of years.
49. As indicated above, pending appeal, the appellants filed C.M.P. No. 3344 of 2004 and the same was disposed of by this Court on 30.4.2004 by fixing the period of three years for each of the persons. This order was challenged by the respondent, the plaintiff, in the Supreme Court. However, the same was dismissed by the Supreme Court requesting the High Court to dispose of the second appeal as expeditiously as possible. On going through the said order, it is clear that specified period has been fixed for each of the contenders.
50. By the very same order, this Court cancelled the orders of the District Elementary Education Officer dated 5.3.2004 and the District Education Officer dated 8.3.2004 in view of the said arrangement. The relevant paragraphs of the said order are as follows:
"16.Hence the lst petitioner is entitled to function as Secretary and Mohammed Shaffi, as the Correspondent of the K.A.M.P. Meerania Muslim Educational Society, Kalakkadu for a period of 3 years from May 2004 to March 2007 and thereafter the 2nd is entitled to function as Secretary of the sangam from April 2007 to March 2010 and thereafter, the lst respondent herein will be the Secretary from April 2010 to March 2013 and this will come in this rotation once in three years and this order is subject to the result of the second appeal.
17. The concurrence given by the District Elementary Education Officer on 05.03.2004 and the acceptance made by the District Education Officer on 08.03.2004 are hereby cancelled and both of them are hereby to pass a necessary resolution accepting the lst petitioner Subaida to function as the Secretary of the sangam from 01.05.2004 and the 2nd petitioner Habeeba from April 2007 from the period of 3 years as directed above."
51. In my view, the said arrangement by way of direction by this Court through the above said order is perfectly justified and consequently, the judgment and decree of the lower appellate Court are set aside and the judgment and decree of the trial Court are restored and the said decree is modified to the above effect as contained in paragraphs 16 and 17 of the order dated 30.4.2004. The second appeals are disposed of accordingly. Consequently, connected C.M.Ps. are closed. No costs.