Madras High Court
Rajah Muthiah Chettiar Charitable And vs Kumararajah Muthiah School Of ... on 29 October, 2015
C.S.Nos.198 of 2016 and 223 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 20.01.2022
DELIVERED ON : 09.02.2022
CORAM
THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE
A.No.1831 of 2016 and O.A.No.334 of 2021
in
C.S.No.198 of 2016
and
O.A.No.412 of 2021
in
C.S.No.223 of 2021
A.No.1831 of 2016:-
Rajah Muthiah Chettiar Charitable and
Education Trust,
represented by its Trustee,
RM.Palaniappan
Rani Seethai Hall Building,
No.603, Anna Salai, Chenni – 600 006. ... Applicant
vs.
1.Kumararajah Muthiah School of Traditional
Arts and Crafts,
A Public Charitable Society,
A Public Charitable Society,
represented by its Secretary,
Kumararani Meena Muthiah
1/124
https://www.mhc.tn.gov.in/judis
C.S.Nos.198 of 2016 and 223 of 2021
“Chettinad House”,
Rajah Annamalaipuram,
Chennai – 600 028.
2.Kumararani Meena Muthiah
3.Chettinad Logistics Private Limited,
represented by its Director,
Rani Seethai Hall Building,
No.603, Anna Salai, Chennai – 600 006. ... Respondents
PRAYER: Application filed under Order XIV Rule 8 of Original Side
Rules r/w Section 151 of Code of Civil Procedure, to grant an order of
interim direction directing the first respondent to deposit a sum of Rs.2
crore per month into the credit of the aforesaid suit for the use and
occupation of the petition schedule mentioned property pending disposal of
the above suit.
O.A.No.334 of 2021:-
1.Kumararajah Muthiah School of Traditional
Arts and Crafts,
A Public Charitable Society,
represented by its Secretary,
Kumararani Meena Muthiah
“Chettinad House”,
Rajah Annamalaipuram,
Chennai – 600 0028.
2.Kumararani Meena Muthiah ... Applicants
vs.
2/124
https://www.mhc.tn.gov.in/judis
C.S.Nos.198 of 2016 and 223 of 2021
1.Rajah Muthiah Chettiar Charitable and
Education Trust,
represented by its Trustee,
RM.Palaniappan
Rani Seethai Hall Building,
No.603, Anna Salai, Chenni – 600 006
2.Chettinad Logistics Private Limited,
represented by its Director,
Rani Seethai Hall Building,
No.603, Anna Salai, Chennai – 600 006. ... Respondents
PRAYER: Origianl Application filed under Order XIV Rule 8 of Original
Side Rules r/w Order 39 Rule 1 and 2 of Code of Civil Procedure, to grant
interim injunction restraining the respondent herein, their men, servans, or
anyone claimng under them from in any manner putting up any
constructions in the property morefully described in Schedule C hereunder
which is part of Schedule A hereunder pending disposal of the suit in
C.S.No.198 of 2016.
O.A.No.412 of 2021 :-
Kumararani Meena Muthiah ... Applicant
vs.
1.Rajah Muthiah Chettiar Charitable and
Education Trust,
represented by its Trustee,
RM.Palaniappan
3/124
https://www.mhc.tn.gov.in/judis
C.S.Nos.198 of 2016 and 223 of 2021
Rani Seethai Hall Building,
No.603, Anna Salai, Chenni – 600 006.
2.Dr.M.A.M.Ramaswamy Chettiar of Chettinad
Charitable Trust,
represented by is Managing Trustee, Dr.A.C.Muthiah,
having its registered office at Chettinad House,
Rajah Annamalaipuram, Chennai-600 028.
3.M.A.M.R.Muthiah
4.Chettinad Logistics Private Limited,
represented by its Director,
Rani Seethai Hall Building,
No.603, Anna Salai, Chennai – 600 006.
5.Kumararajah Muthiah School of Traditional
Arts and Crafts,
Chettinadu House, Rajah Annamalaipuram,
Chennai – 600 028. ... Respondents
PRAYER: Application filed under Order XIV Rule 8 of Original Side
Rules r/w Section 151 of Code of Civil Procedure, to grant interim
injunction restraining the respondents 1, 4 ad 5 herein or anyone claiming
under them from in any manner putting up any construction or carry on any
activity in suit C schedule property morefully described in the Judges
Summons, pending disposal of the above suit.
C.S.No.198 of 2016:-
For Plaintiff :Mr.M.S.Krishnan
Senior Counsel
for Mr.M.Praveenkumar
For D1 and D2 :Mrs.Chitra Sampath
4/124
https://www.mhc.tn.gov.in/judis
C.S.Nos.198 of 2016 and 223 of 2021
Senior Counsel
for Mr.AL.Ganthimathi
For D3 :Mr.T.Mohan
Senior Counsel
C.S.No.223 of 2021:-
For Plaintiff :Mrs.Chitra Sampath
Senior Counsel
for Mrs.AL.Ganthimathi
For D1 :Mr.M.S.Krishnan
Senior Counsel
for Mr.M.Praveenkumar
For D2 :Mr.R.Srinivas
for Mr.S.Sithirai Anandam
For D4 :Mr.V.Raghavachari
Senior Counsel
for Mr.T.Balaji
For D5 :Mr.T.Mohan
Senior Counsel
for Mr.Abinav Parthasarathy
****
COMMON ORDER
Experience shows that family infighting brings downfall of the family empire. No one can become a clear winner in litigations involving family disputes. Ultimately, all the family members involved in the litigation become losers though in varying degrees. Apart from loosing the 5/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 wealth and income, relationships between the family members also takes a beating. The animosity and hatred continues to percolate for generation after generation, though the succeeding generations were not directly involved in the conflict. The present case is one such litigation between members of a well known business family who are having common business and charitable interest. The dispute is not merely a property dispute, but the dispute involves the fate of thousands of students, who are studying in a reputed school by name “Chettinad Vidyashram”, which was established as early as in the year 1986. Since the school is also the subject matter of the litigation, it would have been better if both the parties to the dispute could have amicably resolved their differences for the sake of the Educational Institution and its students. But, unfortunately, that has not happened. The noble objects of the author of the Public Trust has got shattered due to the infighting between the family members.
2. With a heavy heart, this Court is compelled to adjudicate and pass orders in these applications.
3. Even though, there are many parties to this litigation, the main 6/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 dispute is only between two players viz., the one supporting Kumararani Tmt. Meena Muthiah, who is running the school “Chettinad Vidyashram” under a registered Society by name M/s.Kumararajah Muthiah School of Traditional Arts and Crafts and the other supporting Mr.M.A.M.R. Muthiah, the Managing Trustee of M/s.Rajah Muthiah Chettiar Charitable and Educational Trust.
4. The party supporting the case of Mr.M.A.M.R.Muthiah, who claims to be the adopted son of the deceased Dr.M.A.M.Ramaswamy and the Managing Trustee of M/s.Rajah Muthiah Chettiar Charitable and Educational Trust, the fourth defendant in C.S. No.223 of 2021 is M/s.Rajah Muthiah Chettiar Charitable and Educational Trust (the plaintiff in C.S. No.198 of 2016 and the first defendant in C.S. No.223 of 2021). M/s.Rajah Muthiah Chettiar Charitable and Educational Trust and Mr.M.A.M.R. Muthiah shall hereinafter be referred to as “PARTIES DISPUTING THE LEASE dated 29.10.2015”. According to them, the Lease Deed dated 29.10.2015 alleged to have been executed by M/s.Rajah Muthaiah Chettiar Charitable and Educational Trust in favour of 7/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 M/s.Kumararajah Muthaiah School of Traditional Arts and Crafts, a registered society which is running the school “Chettinad Vidyashram”, is a sham and nominal document and therefore, it has to be declared as null and void.
5. The parties who are espousing the cause of Kumararani Tmt. Meena Muthiah, the 2nd defendant in C.S. No.198 of 2016 and the plaintiff in C.S. No.223 of 2021 are
(a) M/s.Kumararajah Muthiah School of Traditional Arts and Crafts (the first defendant in C.S. No.198 of 2016 and 6th defendant in C.S. No.223 of 2021);
(b) Dr.M.A.M.Ramaswamy Chettiar of Chettinad Charitable Trust (the second defendant in C.S. No.223 of 2021);
(C) Mr.M.A.M.M.Annamalai, the adopted Son of Kumararani Tmt. Meena Muthiah (the third defendant in C.S. No.223 of 2021).
6. (a) Kumararani Tmt. Meena Muthiah,
(b) M/s.Kumararajah Muthiah School of Traditional Arts and Crafts, 8/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021
(c) Dr. M.A.M.Ramaswamy Chettiar of Chettinad Charitable Trust,
(d) Mr.M.A.M.M.Annamalai shall hereinafter be referred to as “PARTIES AFFIRMING THE LEASE dated 29.10.2015” registered as Doc. No.3203 of 2015, executed by M/s.Rajah Muthiah Chettiar Charitable and Educational Trust in favour of M/s.Kumararajah Muthiah School of Traditional Arts and Crafts.
7. Kumararani Tmt. Meena Muthiah apart from claiming rights under the lease deed dated 29.10.2015 registered as Doc. No.3203 of 2015 has also subsequently claimed partition in C.S. No.223 of 2021 claiming 5/32 share in the suit “A” schedule property.
8. M/s.Chettinad Logistics Private Limited (the third defendant in C.S. No.198 of 2016 and the fifth defendant in C.S. No.223 of 2021) claims to be a tenant of the suit “C” schedule property under M/s.Rajah Muthiah Chettiar Charitable and Educational Trust, the plaintiff in C.S. No.198 of 2016 and the first defendant in C.S. No.223 of 2021 paying a monthly rent of Rs.2,00,000/-. M/s.Chettinad Logistics Private Limited is a 9/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 fringe player to the present dispute, but however indirectly supports the “Parties disputing the lease dated 29.10.2015”, as according to them, development of suit “C” schedule property by M/s.Rajah Muthiah Chettiar Charitable and Educational Trust is beneficial to their interest as after development, the plaintiff Trust in CS.No.198 of 2016 has agreed to let out the newly constructed portion once again to them.
9. Suit “A” schedule property is the larger extent measuring 127 grounds approximately. Suit “B” schedule property where the school “Chettinad Vidyashram” is situated measures 86 grounds approximately, is a portion of suit “A” schedule property. Suit “C” schedule property is the balance extent measuring 41.630 grounds over which M/s.Chettinad Logistics Private Limited claims to be a tenant under M/s.Rajah Muthiah Chettiar Charitable and Educational Trust, the plaintiff in CS.No.198 of 2016.
10. Even though “PARTIES DISPUTING THE LEASE dated 29.10.2015” have challenged the lease granted in favour of M/s.Kumararajah Muthiah School of Traditional Arts and Crafts for the 10/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 entire extent of 127 grounds, as far as these interlocutory applications are concerned, the dispute is only with regard to 41.63 grounds, which is the suit “C” schedule property. “PARTIES DISPUTING THE LEASE dated 29.10.2015” contend that the suit “C” schedule property is not in the possession of the school "Chettinad Vidyashram", but, it is in the possession of M/s.Chettinad Logistics Private Limited who claims to be a tenant under M/s.Rajah Muthiah Chettiar Charitable and Educational Trust under a lease deed dated 28.03.2011. However, it is the contention of “PARTIES AFFIRMING THE LEASE dated 29.10.2015” that Chettinad Vidyashram is in possession of the entire suit “A” schedule property which includes the suit “C” schedule property also having got the same under a registered lease deed dated 29.10.2015 registered as Doc. No.3203 of 2015 from M/s.Rajah Muthiah Chettiar Charitable and Educational Trust.
11. Originally, M/s.Rajah Muthiah Chettiar Charitable and Educational Trust after the death of its Managing Trustee Dr.M.A.M.Ramasamy filed the suit C.S. No.198 of 2016 seeking for the following reliefs;
11/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021
(a) To declare that the lease deed dated 29.10.2015 and registered as Document No.3203 of 2015, in the office of Sub Registrar – Mylapore, as null and void, between Dr.M.A.M.Ramaswamy and 1st Defendant therein.
(b) For Mandatory Injunction to direct the Defendants 1 and 2 in that suit to demolish the existing superstructures (buildings) in land comprised in RS No.4277 (part), present R.S. No.4277/7, Block No.93, situated at Mylapore village, Triplicane Taluk, Chennai District, measuring an extent of about 86 grounds which is more fully described in suit Schedule “B”.
(c) To quit, vacate and deliver vacant possession (recovery of possession) from the 1st and 2nd defendants therein of the land comprised in R.S. No.4277 (part), present R.S.No.4277/7, Block No.93, situated at Mylapore village, Triplicane Taluk, Chennai District, measuring an extent of about 86 grounds which is more fully described in the suit Schedule “B” mentioned.
(d) To pay to the plaintiff Trust a sum of Rs.3 crores (at the rate of 2 crores per month) by the defendants 1 and 2 in that suit for the use and occupation of the suit “B” schedule property from 10.02.2016 till date of 12/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 Plaint.
(e) To pay to the Plaintiff Trust a sum of Rs.2 crores per month by the Defendants 1 and 2 in that suit towards future use and occupation of the suit “B” schedule property from the date of Plaint till the date of delivery of possession of the suit “B” schedule property.
(f) For a permanent injunction restraining the 1st and 2nd defendants or their men, agents, servants, representatives, assigns or any other person or persons from putting up any additional constructions in the suit “B” schedule property.
12. The contention of the "PARTIES DISPUTING THE LEASE dated 29.10.2015" are as follows:
(a) Lease deed dated 29.10.2015 alleged to have been executed by M/s.Rajah Muthiah Chettiar Charitable and Educational Trust represented by its Managing Trustee Dr.M.A.M.Ramasamy in favour of M/s.
Kumararajah Muthiah School of Traditional Arts and Crafts (the first defendant in CS.No.198 of 2016 and the sixth defendant in CS.No.223 of 2021) is a sham and nominal document which is against the interest of the plaintiff Trust in CS.No.198 of 2016 and has been executed on account of 13/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 undue influence exercised by Kumararani Tmt. Meena Muthiah (the second defendant in CS.No.198 of 2016 and the plaintiff in CS.No.223 of 2021) and one Mr.A.C.Muthiah over the late Dr.M.A.M.Ramasamy.
(b) The plaintiff Trust in CS.No.198 of 2016 was created by a Deed of Indenture dated 14.03.1957. As per clause 19 of the Trust Deed, the decision of the Trust has to be taken by majority of the trustees present at the meeting. No board resolution was passed by the board of trustees of the plaintiff Trust in CS.No.198 of 2016 to enable Dr.M.A.M.Ramasamy to execute a registered lease deed dated 29.10.2015 in favour of M/s. Kumararajah Muthiah School of Traditional Arts and Crafts in respect of suit A schedule property measuring 127 grounds.
(c) Kumararani Tmt. Meena Muthiah and M/s. Kumararajah Muthiah School of Traditional Arts and Crafts were only permissive occupants of the suit B schedule property as they were running the Chettinad Vidyashram school there. The suit C schedule property was never occupied by Chettinad Vidyashram run by Mrs.Kumararani Tmt.Meena Muthiah and M/s. Kumararajah Muthiah School of Traditional Arts and Crafts, the registered society.
14/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021
(d) M/s.Chettinad Logistics Private Limited (the third defendant in CS.No.198 of 2016) was inducted as a tenant over the suit C schedule property under a lease deed dated 28.03.2011 executed by the plaintiff Trust in CS.No.198 of 2016 in their favour. The plaintiff Trust in CS.No.198 of 2016 decided to develop the suit C schedule property and appointed Mr.M.A.M.R.Muthiah (the fourth defendant in CS.No.223 of 2021) as power agent of the plaintiff Trust in CS.No.198 of 2016 vide a general power of attorney dated 10.08.2012. The power agent had applied for necessary building plan approval for development of the suit C schedule property which is also approved by the Town Planning Authorities. Some difference of opinion arose between the deceased Dr.M.A.M.Ramasamy and Mr.M.A.M.R.Muthiah and there were several litigations between them.
(e) Dr.M.A.M.Ramasamy died on 02.12.2015 and after his death, the plaintiff Trust in CS.No.198 of 2016 came to understand that the lease deed dated 29.10.2015 has been executed illegally in favour of M/s. Kumararajah Muthiah School of Traditional Arts and Crafts, a registered society for the entire suit A schedule property measuring 127 grounds and 15/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 332 sq. ft for a period of 25 years at a paltry annual rent of Rs.1,20,000/-. According to the plaintiff Trust in CS.No.198 of 2016, without legal authority, the deceased M.A.M.Ramasamy had executed the lease deed dated 29.10.2015 in favour of M/s.Kumararajah Muthiah School of Traditional Arts and Crafts.
(f) The plaintiff Trust in CS.No.198 of 2016 issued a notice dated 11.12.2015 to M/s. Kumararajah Muthiah School of Traditional Arts and Crafts, the first defendant in CS.No.198 of 2016 and the sixth defendant in C.S.No.223 of 2021 informing them that the lease deed dated 29.10.2015 is not binding on the Trust.
(g) M/s. Kumararajah Muthiah School of Traditional Arts and Crafts (first defendant in CS.No.198 of 2016 and the sixth defendant in CS.No.223 of 2021) issued a reply on 18.12.2015 stating that it is an internal affair of the plaintiff Trust in CS.No.198 of 2016 which does not have any bearing on the lease dated 29.10.2015.
(h) The meeting of the board of trustees of the plaintiff Trust in C.S.No.198 of 2016 was convened on 04.02.2016 and an unanimous resolution was passed to issue notice of termination of the lease dated 16/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 29.10.2015 against M/s. Kumararajah Muthiah School of Traditional Arts and Crafts (the first defendant in CS.No.198 of 2016) and Kumararani Tmt. Meena Muthiah (the second defendant in CS.No.198 of 2016).
(i) The plaintiff Trust in CS.No.198 of 2016 issued the notice of termination on M/s.Kumararajah Muthiah School of Traditional Arts and Crafts on 10.02.2016 terminating the lease deed dated 29.10.2015 registered as document No.3202 of 2015 in its favour, for which, a reply dated 09.03.2016 was received.
(j) M/s.Chettinad Logistics Private Limited has been legally inducted as a lessee by the plaintiff Trust in CS.No.198 of 2016 over the suit C schedule property measuring an extent of 41.63 grounds on a monthly rent of Rs.2,00,000/-.
(k) The plaintiff Trust in CS.No.198 of 2016 decided to develop the suit C schedule property in the year 2012 itself by passing a valid and legal board resolution approved by all the trustees. Therefore, there is no collusion between the plaintiff Trust in CS.No.198 of 2016 and M/s.Chettinad Logistics Private Limited. No board resolution was passed by the Board of trustees of the plaintiff Trust in CS.No.198 of 2016 to 17/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 enable Dr.M.A.M.Ramasamy to execute the lease dated 29.10.2015 as a Managing Trustee on behalf of M/s.Rajah Muthiah Chettiar Charitable and Educational Trust in favour of M/s.Kumararajah Muthiah School of Traditional Arts and Crafts. Hence, the alleged lease deed dated 29.10.2015 is a sham and nominal document and has to be declared as null and void as unilaterally under the undue influence of Kumararani Tmt. Meena Muthiah and another person by name Mr.A.C.Muthiah, the deceased M.A.M.Ramasamy has illegally executed the lease deed on behalf of M/s.Rajah Muthiah Chettiar Charitable and Educational Trust.
(l) The plaintiff in CS.No.223 of 2021 does not have any right to claim partition over the suit A schedule property, after having recognised and accepted the lease dated 29.10.2015 allegedly executed by M/s.Rajah Muthiah Chettiar Charitable and Educational Trust in favour of M/s.Kumararajah Muthiah School of Traditional Arts and Crafts. Eversince the creation of Trust under the Deed of Indenture dated 14.03.1957 and the Deed of Declaration of Trust dated 28.03.1970, the plaintiff in CS.No.223 of 2021 who is seeking partition in the suit A schedule property has recognised that the plaintiff Trust in CS.No.198 of 18/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 2016 is the absolute owner. She is now estopped from disclaiming the ownership of the plaintiff Trust in CS.No.198 of 2016 after a lapse of more than 50 years that too, when she is a beneficiary under the alleged lease deed dated 29.10.2015 executed by the plaintiff Trust in CS.No.198 of 2016 represented by the deceased M.A.M.Ramasamy.
13. The contention of the "PARTIES AFFIRMING THE LEASE dated 29.10.2015" allegedly executed by M/s.Rajah Muthiah Chettiar Charitable and Educational Trust represented by its Managing Trustee, Dr.M.A.M.Ramasamy in favour of M/s.Kumararajah Muthiah School of Traditional Arts and Crafts, the registered society which is running the school Chettinad Vidyashram are as follows:
(a) The suit filed by the plaintiff Trust in CS.No.198 of 2016 is not maintainable, since R.M.Palaniappan has not been authorised to represent the plaintiff Trust.
(b) The election of Mr.M.A.M.R.Muthiah as Managing Trustee of the plaintiff Trust in CS.No.198 of 2016 by a resolution dated 12.10.2015 is denied. The first defendant society in CS.No.198 of 2016 had started the 19/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 school Chettinad Vidyashram in the year 1986 and the entire suit A schedule property was leased out to the said society and they were put in possession of the same by the plaintiff Trust. The entire construction in the suit A schedule property has been put up with the full knowledge and permission of the plaintiff Trust in CS.No.198 of 2016.
(c) The plaintiff Trust in CS.No.198 of 2016 was well aware of the fact that the construction had been put up in the entire suit A schedule property as Mr.M.A.M.R.Muthiah, the alleged present Managing Trustee was living adjacent to the suit A schedule property with a common main entrance. The plea that the plaintiff Trust in CS.No.198 of 2016 was not aware of running of the school Chettinad Vidyashram in the suit A schedule property is false and incorrect.
(d) The unregistered lease deed dated 28.03.2011 for the suit C schedule property measuring about 41.63 grouds in favour of M/s.Chettinad Logistics Private Limited (the third defendant in CS.No.198 of 2016 and the fifth defendant in CS.No.223 of 2021) is false and incorrect and the said deed is a forged document.
(e) M/s.Chettinad Logistics Private Limited is under the control of 20/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 Mr.M.A.M.R.Muthiah and therefore, the lease deed dated 28.03.2011 for the suit C schedule property has been created only with the collusion between M/s.Chettinad Logistics Private Limited and Mr.M.A.M.R.Muthiah.
(f) The suit O.S.No.201 of 2016 filed by M/s.Chettinad Logistics Private Limited before the City Civil Court, Chennai seeking for permanent injunction from evicting them except by due process of law is a collusive suit between Chettinad Logistics Private Limited and the plaintiff Trust in CS.No.198 of 2016.
(g) Insofar as the land in suit A schedule property is concerned, the lease is of the year 1986 and the entire property is being used to impart education which is one of the objectives of the plaintiff Trust in CS.No.198 of 2016 and only under those circumstances, the lease amount was fixed at Rs.1.20 lakhs per month. The lease deed dated 29.10.2015 executed by the deceased M.A.M.Ramasamy on behalf of the plaintiff Trust in CS.No.198 of 2016 has been validly executed in favour of M/s.Kumararajah Muthiah School of Traditional Arts and Crafts.
(h) There is no undue influence exercised by Kumararani Tmt. 21/124
https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 Meena Muthiah on the deceased M.A.M.Ramasamy for the purpose of executing the lease deed dated 29.10.2015 in favour of M/s.Kumararajah Muthiah School of Traditional Arts and Crafts. The entire 127 grounds which is the suit A schedule property was under lease and in the occupation of the defendants 1 & 2 in CS.No.198 of 2016 eversince 1986 and the subsequent lease deed alleged to have been executed on 28.03.2011 in favour of M/s.Chettinad Logistics Private Limited is a fabricated and collusive document and being an unregistered document, is not admissible in the eye of law.
14. Kumararani Tmt. Meena Muthiah who is the second defendant in CS.No.198 of 2016 also filed a separate suit in CS.No.223 of 2021 seeking partition of the suit A schedule property against the following parties:
(i) M/s.Rajah Muthiah Chettiar Charitable and Educational Trust (The plaintiff Trust in CS.No.198 of 2016).
(ii) Dr.M.A.M.Ramasamy Chettiar of Chettinad Charitable Trust which was founded by Dr.M.A.M.Ramasamy was created by a Deed of Declaration dated 09.03.2015.
22/124
https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021
(iii) Mr.M.A.M.M.Annamalai is the adopted son of Kumararani Tmt.Meena Muthiah, the plaintiff in CS.No.223 of 2021.
(iv) Mr.M.A.M.R.Muthiah who is the present Managing Trustee of the plaintiff Trust in CS.No.198 of 2016 is alleged to be the adopted son of the deceased M.A.M.Ramasamy.
(v) M/s.Chettinad Logistics Private Limited is the tenant alleged to have been inducted by the plaintiff Trust in CS.No.198 of 2016 over the suit C schedule property measuring 41.63 grounds under a lease deed dated 28.03.2011.
(vi) M/s.Kumararajah Muthiah School of Traditional Arts and Crafts is a registered society running the school Chettinad Vidhyasharam which is controlled by Kumararani Tmt. Meena Muthiah, the plaintiff in CS.No.223 of 2021.
15. Dr.M.A.M.Ramasamy Chettiar of Chettinad Charitable Trust, Mr.M.A.M.M.Annamalai and M/s.Kumararajah Muthiah School of Traditional Arts and Crafts, the defendants 2, 3 & 6 respectively in CS.No.223 of 2021 support the case of the plaintiff in CS.No.223 of 2021 23/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 and they sail along with her.
16. In the aforementioned partition suit, CS.No.223 of 2021, Kumararani Tmt. Meena Muthiah has prayed for partition and separate possession of the suit A schedule property by alloting 5/32 share to her in the property measuring 127 grounds. She has given a geneology of her family and as to how, she is entitled for allotment of 5/32 share in the suit A schedule property measuring 127 grounds. She has stated that the first defendant in CS.No.223 of 2021 namely, M/s.Rajah Muthiah Chettiar Charitable and Educational Trust which is the plaintiff in CS.No.198 of 2016 was founded by Raja Sir M.A. Muthiah Chettiar, his wife, his two sons and his two daughter-in-laws who is the plaintiff in CS.No.223 of 2021 and the deceased Sigappi Achi. According to the plaintiff in CS.No.223 of 2021, the second defendant Trust in CS.No.223 of 2021 was founded by the deceased Dr.M.A.M.Ramasamy by a Deed of Declaration dated 09.02.2015.
17. According to the plaintiff in CS.No.223 of 2021, the deceased Dr.M.A.M.Ramasamy executed his last Will and testament dated 24/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 18.02.2015 under which the beneficiary is Dr.M.A.M.Ramasamy Chettiar of Chettinad Charitable Trust, the second defendant in CS.No.223 of 2021.
18. According to the plaintiff in CS.No.223 of 2021, the suit A schedule property was bequeathed in favour of Rajah Sir M.A.M.Muthiah Chettiar on 04.03.1948. Thereafter, half undivided share in the suit A schedule property was gifted by Rajah Sir M.A.Muthiah Chettiar in favour of Kumararajah M.A.Muthiah Chettiar under a registered Gift Deed dated 24.03.1960. According to the plaintiff in CS.No.223 of 2021, after the execution of the Gift Deed dated 24.03.1960 referred to supra, Kumararajah M.A.Muthiah Chettiar and the plaintiff's father-in-law, Rajah Sir M.A.Muthiah Chettiar became equal owners of the property. On 24.01.1970, Kumararajah M.A.Muthiah died and on 28.03.1970, Rajah Sir M.A.Muthiah Chettiar executed a registered Deed of Declaration of Trust in favour of M/s.Rajah Muthiah Chettiar Charitable and Educational Trust (the first defendant in CS.No.223 of 2021 and the plaintiff in CS.No.198 of 2016) in respect of 1/2 share in the vacant land namely 75 grounds out of 150 grounds.
25/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021
19. According to the plaintiff in CS.No.223 of 2021, subsequent to the death of Kumararajah M.A. Muthiah Chettiar, his mother Rani Meyyammai Achi and the plaintiff in CS.No.223 of 2021 became his legal heirs. According to the plaintiff in CS.No.223 of 2021, the plaintiff in CS.No.223 of 2021 became entitled to one 1/2 share in the property. According to the plaintiff in CS.No.223 of 2021, late Rani Meyyammai Achi died on 01.03.1970. According to the plaintiff in CS.No.223 of 2021, Late Rani Meyyammai Achi's 1/2 share was inherited by her husband Rajah sir M.A.Muthiah Chettiar and her another son Dr.M.A.M.Ramasamy.
20. According to the plaintiff in CS.No.223 of 2021, Rajah Sir M.A. Muthiah Chettiar died on 12.05.1984. Thereafter, according to the plaintiff in CS.No.223 of 2021, patta in respect of the property stood in the name of the estate of Kumararajah M.A. Muthiah Chettiar and M/s.Rajah Muthiah Chettiar Charitable and Educational Trust (the first defendant in CS.No.223 of 2021 and the plaintiff in CS.No.198 of 2021). 26/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021
21. According to the plaintiff in CS.No.223 of 2021, Dr.M.A.M.Ramasamy died on 02.12.2015 and his share in the property was allotted in favour of Dr.M.A.M.Ramasamy Chettiar of Chettinad Charitable Trust (the second defendant in CS.No.223 of 2021) as per his last Will and testament dated 18.02.2015. According to the plaintiff in CS.No.223 of 2021, her adopted son Mr.M.A.M.M.Annamalai is entitled to 5/32 share in the suit A schedule property and the second defendant in CS.No.223 of 2021 namely Dr.M.A.M.Ramasamy Chettiar of Chettinad Charitable Trust is entitled to 8/16 share and the plaintiff in CS.No.223 of 2021 is entitled to 5/32 share in the suit A schedule property.
22. According to the plaintiff in CS.No.223 of 2021, since she is in possession of the entire suit A schedule property and running the school Chettinad Vidyashram since 1986, she was advised by the members of the family to transfer a sum of Rs.1,20,000/- per annum to M/s.Rajah Muthiah Chettiar Charitable and Educational Trust, the plaintiff in CS.No.198 of 2016 and the first defendant in CS.No.223 of 2021. According to the plaintiff in CS.No.223 of 2021, she was informed by her brother-in-law 27/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 Dr.M.A.M.Ramasamy that the lease in favour of the sixth defendant society in CS.No.223 of 2021 and the first defendant in CS.No.198 of 2016 will be regularised by execution of a registered lease deed and as a Managing Trustee of M/s.Rajah Muthiah Chettiar Charitable and Educational Trust, Dr.M.A.M.Ramasamy executed the registered lease deed dated 29.10.2015 in favour of M/s.Kumararajah Muthiah School of Traditional Arts and Crafts, the first defendant in CS.No.198 of 2016 and the sixth defendant in CS.No.223 of 2021.
23. In the earlier round of litigation in CS.No.198 of 2016, before the suit CS.No.223 of 2021 came to be filed, the plaintiff Trust in CS.No.198 of 2016 filed (a) O.A.No.238 of 2016 seeking for an order of interim injunction restraining Kumararani Tmt. Meena Muthiah and M/s.Kumararajah Muthiah School of Traditional Arts and Crafts from putting up any construction in the suit A schedule property, (b) O.A.No.239 of 2016 seeking for an order of interim injunction restraining M/s.Kumararajah Muthiah School of Traditional Arts and Crafts from any manner acting under the lease deed dated 29.10.2015 registered as document No.3203 of 2015 and (c) A.No.1831 of 2016 seeking for an 28/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 order of interim direction to M/s.Kumararajah Muthiah School of Traditional Arts and Crafts to deposit a sum of Rs.2,00,00,000/- per month into the credit of the suit CS.No.198 of 2016 for the alleged unlawful use and occupation of the suit A schedule property pending disposal of the suit. Kumararani Tmt. Meena Muthiah, the plaintiff in CS.No.223 of 2021 and M/s.Kumararajah Muthiah School of Traditional Arts and Crafts, the sixth defendant in the said suit also filed Application No.3684 of 2019 seeking to vacate the interim injunction granted on 30.04.2019 in favour of the plaintiff Trust in CS.No.198 of 2016.
24. By a common order dated 26.06.2019 passed in O.A.Nos.238 & 239 of 2016 and A.No.1831 of 2016 and A.No.3684 of 2019, a learned Single Judge of this Court dismissed O.A.Nos.238 & 239 of 2016 & A.No.1831 of 2016 filed by the plaintiff Trust in CS.No.198 of 206 and allowed Application No.3684 of 2019 filed by M/s.Kumararajah Muthiah School of Traditional Arts and Crafts and Kumararani Tmt.Meena Muthiah and vacated the interim injunction granted in favour of the plaintiff Trust on 30.04.2019.
29/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021
25. Aggrieved by the common order dated 26.06.2019, the plaintiff Trust in CS.No.198 of 2016 preferred Original Side Appeals before the Division Bench of this Court in OSA.Nos.194, 196 & 165 of 2020. By order dated 01.10.2020, the Division Bench of this Court in the aforementioned OSAs disposed of the same by remanding OSA.No.194 of 2016 filed as against the order passed in A.No.1831 of 2016 to the learned Single Judge for fresh consideration, after recording the undertaking given by the learned Senior Counsel on instructions that M/s.Kumararajah Muthiah School of Traditional Arts and Crafts and Kumararani Tmt. Meena Muthiah will not put up any further construction on the disputed site in question and disposed of OSA.Nos.196 & 165 of 2020 in terms of the said undertaking. Therefore, M/s.Kumararajah Muthiah School of Traditional Arts and Crafts and Kumararani Tmt. Meena Muthiah have undertaken before the Division Bench of this Court that they shall not put up any further construction in the suit A schedule property pending disposal of the suit CS.No.198 of 2016.
26. A.No.1831 of 2016 has to be decided afresh by this Court in 30/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 view of the order of remand passed in OSA.No.194 of 2016. A.No.1831 of 2016 pertains to determination of mesne profit for the alleged unlawful use and occupation of the suit A schedule property by M/s.Kumararajah Muthiah School of Traditional Arts and Crafts and Kumararani Tmt. Meena Muthiah.
27. After the disposal of OSA.Nos.194, 196 & 165 of 2020 by the Division Bench of this Court on 01.10.2020, M/s.Kumararajah Muthiah School of Traditional Arts and Crafts and Kumararani Tmt. Meena Muthiah, the defendants 1 & 2 in CS.No.198 of 2016 filed OA.No.334 of 2021 before this Court seeking for an order of interim injunction restraining the plaintiff Trust in CS.No.198 of 2016 and the third defendant in CS.No.198 of 2016 from in any manner putting up any construction in the suit C schedule property, pending disposal of the suit CS.No.198 of 2016. Thereafter, Kumararani Tmt. Meena Muthiah, the second defendant in CS.No.198 of 2016 filed a separate suit CS.No.223 of 2021 seeking for partition claiming 5/32 share in the suit A schedule property. In CS.No.223 of 2021, Kumararani Tmt. Meena Muthiah, the plaintiff therein filed 31/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 O.A.No.412 of 2021 seeking for an order of interim injunction restraining the plaintiff Trust in CS.No.198 of 2016, Mr.M.A.M.R.Muthiah, the alleged adopted son of the deceased M.A.M.Ramasamy and M/s.Chettinad Logistics Private Limited from in any manner putting up any construction or carrying on any activity in the suit C schedule property, pending disposal of the suit CS.No.223 of 2021.
28. This Court will now have to adjudicate A.No.1831 of 2016 & O.A.No.334 of 2021 in CS.No.198 of 2016 & OA.No.412 of 2021 in CS.No.223 of 2021.
Submissions of learned counsels:
29. Heard Mrs.Chitra Sampath, learned Senior Counsel representing Kumaranai Tmt. Meena Muthiah (the plaintiff in CS.No.223 of 2021 and the second defendant in CS.No.198 of 2016) and M/s.Kumararajah Muthiah School of Traditional Arts and Crafts (the first defendant in CS.No.198 of 2016 and the sixth defendant in CS.No.223 of 2021, Mr.Srinivas, learned counsel representing Dr.M.A.M.Ramasamy Muthiah Chettiar of Chettinad Charitable Trust, the second defendant in CS.No.223 32/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 of 2021, Mr.M.S.Krishnan, learned Senior Counsel representing Rajah Muthiah Chettiar Charitable and Educational Trust, the plaintiff Trust in CS.No.198 of 2016 and the first defendant in CS.No.223 of 2021, Mr.V.Raghavachari, learned Counsel for Mr.M.A.M.R.Muthiah, the fourth defendant in CS.No.223 of 2021 and Mr.T.Mohan, learned Counsel for M/s.Chettinad Logistics Private Limited, the third defendant in CS.No.198 of 2016 and the fifth defendant in CS.No.223 of 2021.
30. Mrs.Chitra Sampath, learned Senior Counsel for Kumararani Tmt.Meena Muthiah and M/s.Kumararajah Muthiah School of Traditional Arts and Crafts has referred to various documents filed along with the plaint in CS.No.198 of 2016 and CS.No.223 of 2021 and would submit as follows:
(a) Mr.R.M.Palaniappan has not been authorized to represent the plaintiff Trust in CS.No.198 of 2016 and therefore, the suit is not maintainable.
(b) The alleged resolution dated 10.12.2015 electing Mr.M.A.M.R.Muthiah as the Managing Trustee for the plaintiff Trust in 33/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 CS.No.198 of 2016 is denied by the “PARTIES AFFIRMING THE LEASE dated 29.10.2015”.
(c) The first defendant in CS.No.198 of 2016 started the school Chettinad Vidyashram in the year 1986 and the entire suit A schedule property was leased out to the first defendant in CS.No.198 of 2016 and the first defendant Society was put in possession of the same by the plaintiff Trust in CS.No.198 of 2016.
(d) The entire construction in the suit A schedule property has been put up with the full knowledge and permission of the plaintiff Trust in CS.No.198 of 2016 and the entire cost was apportioned only by the first defendant Society though gradually over the period of years.
(e) The plaintiff Trust in CS.No198 of 2016 and its Trustees were well aware of the fact that the construction had been put up in the entire property by the first defendant Society as Mr.M.A.M.R.Muthiah the present Managing Trustee of the plaintiff Trust in CS.No.198 of 2016 was living adjacent to the suit A schedule property with a common main entrance and the plea that the Trust was not aware of running the school Chettinad Vidyashram by the first defendant Society is false and incorrect. 34/124
https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021
(f) The lease deed dated 28.03.2011 in respect of suit C schedule property measuring 41.63 grounds alleged to have been let out to the third defendant in CS.No.198 of 2016 is a collusive and forged document. M/s.Chettinad Logistics Private Limited, the third defendant in CS.No.198 of 2016 is substantially under the control of Mr.M.A.M.R.Muthiah and as such, the lease has been created only with collusion between the third defendant in CS.No.198 of 2016 and Mr.M.A.M.R.Muthiah, the fourth defendant in CS.No.223 of 2021.
(g) The suit O.S.No.201 of 2016 filed by the third defendant in CS.No.198 of 2016 is also a collusive suit between M/s.Chettinad Logistics Private Limited, the third defendant in CS.No.198 of 2016 and Mr.M.A.M.R.Muthiah.
(h) Insofar as the land in the suit A schedule property is concerned, the lease in favour of the first defendant Society in CS.No.198 of 2016 is from the year 1986 and the entire property was used by them for imparting education which is one of the objectives of the plaintiff Trust in CS.No.198 of 2016. Hence, the lease amount fixed at Rs.1.20 lakhs per month under the lease deed dated 29.10.2015 cannot be a ground for challenge and the 35/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 lease has been validly executed by the Managing Trustee of the plaintiff Trust who was alive then.
(i) There is no undue influence as alleged by the plaintiff Trust in CS.No.198 of 2016 and the entire 127 grounds was under the lease and occupation of the defendants 1 and 2 in CS.No.198 of 2016 and the subsequent lease deed alleged to have been executed on 28.03.2011 in favour of third defendant is a fabricated document and is an un-registered document which is not admissible in the eye of law.
(j) Kumararani Tmt.Meena Muthiah is the wife of late Kumararajah M.A.Muthiah Chettiar, the elder son of the late Rajah Sir M.A.Muthiah Chettiar. The first defendant in CS.No.223 of 2021 and the plaintiff in CS.No.198 of 2016 is a public charitable Trust founded by Rajah Sir M.A.Muthiah Chettiar, his wife, his two sons and his two daughter-in-laws i.e., the plaintiff in C.S.No.223 of 2021 and late Sigapiachi.
(k) The second defendant in CS.No.223 of 2021 is the Trust founded by the late Dr.M.A.M.Ramasamy Chettiar by a Deed of Declaration dated 09.02.2015. On 18.02.2015, Dr.M.A.M.Ramasamy executed a Will and testament in which the second defendant Trust in 36/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 CS.No.223 of 2021 is a beneficiary. The third defendant in CS.No.223 of 2021 is the adopted son of the plaintiff in CS.No.223 of 2021. The fourth defendant is claiming to be the adopted son of late Dr.M.A.M.Ramasamy. The fifth defendant (M/s.Chettinad Logistics Private Limited) is a private company under the control of the fourth defendant. The sixth defendant is a society formed by the plaintiff in CS.No.223 of 2021 to run the school Chettinad Vidyashram.
(l) The property described in the suit A schedule to the plaint, originally belongs to Rajah Sir Annamalai Chettiar. The property was bequeathed in favour of Rajah Sir M.A.Muthiah Chettiar on 04.03.1948.
(m) By a registered Gift Deed dated 24.03.1960, half undivided share in the property was gifted by Rajah Sir M.A.Muthiah Chettiar in favour of Kumararajah M.A.Muthiah Chettiar. By virtue of the Gift Deed, Kumararajah M.A.Muthiah Chettiar and his father became the equal owners of the suit A schedule property.
(n) Kumararajah M.A.Muthiah Chettiar died on 24.01.1970. Rajah Sir M.A.Muthiah Chettiar executed a registered Deed of Declaration of Trust dated 28.03.1970 in favour of the first defendant in CS.No.223 of 37/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 2021 which is the plaintiff Trust in CS.No.198 of 2016 in respect of his half share in the vacant land namely 75 grounds out of 150 grounds in R.S.No.4277.
(o) Subsequent to the death of Kumarajah M.A.Muthiah Chettiar, his mother Rani Lady Meyyammai Achi and the plaintiff in CS.No.223 of 2021 became his legal heirs. As such, the property can be divided into half and half share and the plaintiff in CS.No.223 of 2021 herein became entitled to one half share.
(p) Rani Lady Meyyammai Achi died on 01.03.1970 and her half share was inherited by her husband Rajah Sir M.A. Muthiah Chettiar and her younger son Dr.M.A.M. Ramasamy.
(q) Rajah Sir M.A.Muthiah Chettiar died on 12.05.1984. After his death, Patta in respect of the property stood in the name of the estate of Kumararajah M.A. Muthiah Chettiar and the first defendant Trust in CS.No.223 of 2021 which is the plaintiff Trust in CS.No.198 of 2016.
(r) Dr. M.A.M. Ramasamy died on 02.12.2015 and his share in the suit A schedule property got bequeathed in favour of the second defendant Trust in CS.No.223 of 2021 as per his last will dated 18.02.2015. 38/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021
(s) The third defendant in CS.No.223 of 2021 is therefore entitled to 5/16th share in the suit property and the second defendant in CS.No.223 of 2021 is entitled to 3/16th share and the first defendant in CS.No.223 of 2021 is entitled to 8/16th share. Hence, the plaintiff in CS.No.223 of 2021 is entitled for partition of 5/32 share in the suit A schedule property. Since the plaintiff in CS.No.223 of 2021 is in possession of the suit A schedule property for the purpose of running the school since 1986, the plaintiff was advised by the members of the family to transfer a sum of Rs.1.20 lakhs per annum to the first defendant Trust in CS.No.223 of 2021 which is the plaintiff Trust in CS.No.198 of 2016.
(t) The plaintiff's brother-in-law Dr.M.A.M.Ramasamy Chettiar while he was alive informed the plaintiff in CS.No.223 of 2021 viz., Kumararani Tmt.Meena Muthiah that the lease in favour of the sixth defendant in CS.No.223 of 2021 can be regularized by execution of a registered lease deed and as a Managing Trustee, he executed a registered lease deed dated 29.10.2015 in favour of the sixth defendant in CS.No.223 of 2021 and the first defendant Society in CS.No.198 of 2016.
(u) The lease deed dated 29.10.2015 being a genuine document and 39/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 executed in respect of the suit A schedule proeprty which includes the suit C schedule property also, the plaintiff in CS.No.223 of 221 has satisfied the triple test for grant of interim injunction namely (a) prima facie case;
(b) balance of convenience and (c) irreparable injury.
(v) Eversince 1986, the first defendant Society in CS.No.198 of 2016 who is the sixth defendant in CS.No.223 of 2021 and the plaintiff in CS.No.223 of 2021 are in possession of the entire suit A schedule property and therefore, interim injunction will have to be granted in favour of the plaintiff Trust in CS.No.223 of 2021 as prayed for in O.A.No.334 of 2021 & 412 of 2021.
(w) The contentions raised by the plaintiff Trust in CS.No.198 of 2016 who is the first defendant in CS.No.223 of 2021 are matters for trial. Having got a valid registered lease deed dated 29.10.2015 executed in favour of the Society which is running the school, injunction will have to be granted in favour of the plaintiff in CS.No.223 of 2021 and the Society.
31. In support of her submissions, Mrs.Chitra Sampath learned Senior Counsel drew the attention of this Court to the following 40/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 authorities:
(a) A Division Bench of this court in the case of Dr.Raja Sir M.A.Muthiah Chettiar vs. Commissioner of Income-Tax, Madras reported in 1983 SCC Online Mad 247.
Relying upon the said decision, she would submit that even the income tax authorities did not recognise the agreement of Gift Deed dated 09.03.1969 executed by Rajah Sir M.A.Muthiah Chettiar and Kumararajah M.A.Muthiah Chettiar in favour of the plaintiff Trust in CS.No.198 of 2016 and in the said decision, the agreement of Gift Deed dated 09.03.1969 was under consideration and Dr.Rajah Sir M.A.Muthiah Chettiar claimed exemption from payment of tax on account of gift in favour of the Trust which was negatived by the Income Tax Appellate Tribunal and affirmed by the Division Bench of this Court.
(b) A Division Bench Judgement of the Kerala High Court in the case of Manari Parvathi Amma and others vs. Nellikkal Parvathi Amma and others reported in 1982 SCC Online KER 179. Relying upon the said decision, learned Senior Counsel would submit that as per the said decision, a lessee from a co-sharer is entitled to the rights 41/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 of the lessor and can even enforce partition, if it is necessary to give effect to the lease.
(c) A decision of the Hon'ble Supreme Court in the case of Maharwal Khenwaji Trust (Regd.) Faridkot vs. Baldev Dass reported in (2004) 8 SCC 488.
Relying upon the said decision, learned Senior Counsel would contend that generally during the pendency of the litigation, the courts protect the status quo existing on the date of the suit and it is only in exceptional circumstances, where irreparable damage is feared, the Court permits the change of status quo.
(d) A Division Bench Judgment of this Court in the case of Sainath Mandir Trust vs. Vijaya and others reported in (2011) 1 SCC 623; Relying upon the said decision, learned Senior Counsel would submit that agreement of Gift Deed dated 09.03.1969 executed by Rajah Sir M.A.Muthiah Chettiar and Kumararajah M.A.Muthiah Chettiar in favour of the plaintiff Trust in CS.No.198 of 2016 is an unregistered instrument and therefore, no title could pass on the basis of the same under section 123 of the Transfer of Property Act. Since there is no dedication of the 42/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 immovable property to God under the agreement of Gift dated 09.03.1969, the said document requires registration. Hence, the said document according to her, is inadmissible in evidence.
32. Mr.Srinivas, learned counsel for Dr.M.A.M.Ramasamy Muthiah Chettiar of Chettinad Charitable Trust, the second defendant in CS.No.223 of 2021 adopts the argument of Mrs.Chitra Sampath, learned Senior Counsel and apart from that, he made the following submissions:
(a) Dr.M.A.M.Ramasamy Chettiar founded a Public Trust, the second defendant namely Dr.M.A.M.Ramasamy Chettiar of Chettinad Charitable Trust on 09.02.2015.
(b) Dr.M.A.M.Ramasamy on his own accord and volition executed a valid Will dated 18.02.2015 under which, he bequeathed all his assets to the second defendant Trust in CS.No.223 of 2021.
(c) The fourth defendant in CS.No.223 of 2021 is not a legally adopted son of Dr.M.A.M.Ramasamy. The alleged adoption deed dated 09.02.1996 is neither valid nor legal and it is contrary to the customs of the Nagarathar community to which all the persons in this suit hail. 43/124
https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021
(d) Dr.M.A.M.Ramasamy when he was alive, disowned the fourth defendant and clearly declared that the aforesaid alleged adoption as void and not valid. He also declared that any of his assets would not go to the fourth defendant or his wife or his children.
(e) The second defendant has applied for probate of Dr.M.A.M.Ramasamy's Will dated 18.02.2015 and the said case is pending in TOS.No.27 of 2021 on the file of this Court.
(f) The second defendant is supporting the case of the plaintiff in CS.No.223 of 2021 who has sought for partition.
(g) The objection raised by the "PARTIES DISPUTING THE LEASE dated 29.10.2015” that the second defendant Trust in CS.No.223 of 2021 claiming its share of the property through Will dated 18.02.2015 and Mr.M.A.M.R.Muthiah cannot have any right to file legal proceeding, unless the Will is probated in view of section 239 of the Indian Succession Act is not correct.
(h) By virtue of section 211 of the Indian Succession Act, the property covered by the Will vests in legatee or executor as soon as the testator dies and need not wait till probate is obtained. Such a person need 44/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 not wait for grant of probate, but can file a suit even before obtaining the probate.
33. In support of the above proposition, Mr.Srinivas, learned counsel relied upon the following authorities:
(a) Hubet Probhat Pereira vs. Narayan Adhya and others reported in 2016 SCC Online Cal 6073;
(b) M.Somasundaram & Another vs. V.Srinivasan & Another reported in 2009 (4) LW 785;
(c) FGP Limited vs. Saleh Hooseini Doctor & Another reported in (2009) 10 SCC 223;
(d) Commissioner, Jalandhar Division & Others vs. Mohan Krishnan Abrol & Another reported in (2004) 7 SCC 505;
(e) Joginder Singh & Others vs. Suresh Kumar & Others reported in 2015 SCC Online HP 864.
34. With regard to the objections raised by the "PARTIES DISPUTING THE LEASE dated 29.10.2015" that the property involed in the writ petition is not specifically mentioned in the Will of 45/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 Dr.M.A.M.Ramasamy and that the second defendant in CS.No.223 of 2021 has no legal right in the concerned property is incorrect is concerned, Mr.Srinivas, learned counsel would submit that the Will can contain a residual clause bequeathing properties of the testator not specifically mentioned in the same. According to him, in the case on hand, the Will contains a residual clause of properties of Dr.M.A.M.Ramasamy not mentioned therein to the second respondent Trust in CS.No.223 of 2021. In support of the aforesaid proposition, Mr.Srinivas, learned counsel would rely upon the following authorities:
(a)Shiv Kumar and another vs Union of India and others reported in (2019) 10 SCC 229;
(b) K.S.Palanisami vs. Hindu Community in General and Citizens of Gobichettipalayam and others, reported in (2017) 13 SCC 15.
35. Per contra, Mr.M.S.Krishnan, learned Senior Counsel representing the plaintiff Trust in CS.No.198 of 2016 drew the attention of this Court to the various documents filed in the compliation of documents dated 22.12.2021 which covers the plaint documents filed along with CS.No.198 of 2016, CS.No.223 of 2021 & W.P.No.18058 of 2021. He 46/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 also drew the attention of this Court to the orders passed by the City Civil Court, both by the Trial Court as well as the Lower Appellate Court, in the suit filed by M/s.Chettinad Logistics Private Limited, the third defendant in CS.No.198 of 2016 and the fifth defendant in CS.No.223 of 2021. He also drew the attention of this Court to the order passed by the learned Single Judge of this Court on 21.06.2019 in O.A.Nos.238 & 239 of 2016 & A.No.1831 of 2016 in CS.No.198 of 2016 and to the common order dated 01.10.2020 passed by the Division Bench of this Court in O.S.A.Nos.194, 196 & 165 of 2020.
36. After drawing attention of this Court to the aforementioned documents/pleadings/orders, he would reiterate the contents of the counter filed by the plaintiff Trust in CS.No.198 of 2016 in OA.No.412 of 2021 & O.A.No.334 of 2021. In support of his contention that Registration is not compulsory for a property dedicated to charitable purpose also is concerned, he relied upon the following authorities:
(a) Manakuru Dasaratharami Reddi & Another vs. Duddukuru Subba Rao & Others reported in AIR -1957 SC 797;
47/124
https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021
(b) Ram Kumar Ram Chandra & Co vs. Commissioner of Income tax, UP., Lucknow reported in AIR 1966 All 100;
(c) S. Devaraj vs. Commissioner of Wealth -Tax reported in (1973) 90 ITR 400;
(d) Dharmadhar Mahasthavir, Rev. vs. Bengal Buddhist Associaion reported in MANU/WB/0367/1974;
(e) Kapoor Chand & others vs. Ganesh Dutt & others reported in 1993 Supp (4) SCC 432;
(f) Kuldip Chand & Another vs. Advocate General to Government of H.P. & others reported in (2003) 5 SCC 46;
(g) The Commissioner of Income Tax (Central) Kanpur v. Dr.(Miss) Chandra Kanta Rohatgi reported in (2006)1 All LJ 54 (DB);
(h) Sainath Mandir Trust vs. Vijaya & others reported in (2011) 1 SCC 623;
(i) Nar Bahadur Khatiwada vs. State of Sikkim & others reported in MANU/SI/0014/2013.
37. Mr.M.S.Krishnan, learned Senior Counsel would submit that though the agreement of Gift Deed dated 09.03.1969 executed by Rajah 48/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 Sir M.A.Muthiah Chettiar and Kumararajah M.A.Muthiah Chettiar in favour of the plaintiff Trust in CS.No.198 of 2016 is an unregistered document, since the dedication was made for a public charitable purpose, in view of the aforementioned judgments, the agreement of Gift Deed does not require registration. Further he would submit that the agreement of Gift Deed dated 09.03.1969 referred to supra was acted upon by all the parties including the plaintiff and the sixth defendant in CS.No.223 of 2021 and therefore, the plaintiff in CS.No.223 of 2021 and the sixth defendant have recognised that the plaintiff Trust in CS.No.198 of 2016 is the absolute owner of the suit A schedule property.
38. Mr.M.S.Krishnan, learned Senior Counsel would then submit that the suit filed by Kumararani Tmt.Meena Muthiah in CS.No.223 of 2021 amounts to abuse of judicial process. He would submit that the development in respect of the suit C schedule property was contemplated even during the lifetime of Dr.M.A.M.Ramasamy. He drew the attention of this Court to the resolution passed by the plaintiff Trust in CS.No.198 of 2016 on 10.08.2012 by which the plaintiff Trust in CS.No.198 of 2016 49/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 decided to seek permission from the competent authority for putting up construction in the suit C schedule property to enable the plaintiff Trust to generate income. According to him, only with the knowledge of the "PARTIES AFFIRMING THE LEASE dated 29.10.2015", the resolution dated 10.08.2012 was passed by the plaintiff Trust in CS.No.198 of 2016. He would submit that the present suit CS.No.223 of 2021 is not only a stale, but a mischievous one and it has been instituted at the instance of Mr.A.C.Muthiah, a Trustee of the second defendant Trust in CS.No.223 of 2021. Mr.M.S.Krishnan learned Senior Counsel would further submit that the suit for partition has been filed even without disclosing the plaintiff's status in the second defendant Trust in CS.No.223 of 2021.
39. Mr.M.S.Krishnan learned Senior Counsel would submit that it was obvious that after the permission has been granted by the appropriate authority for development in the suit C schedule property, the plaintiff and the sixth defendant in CS.No.223 of 2021 are creating unwanted interference by filing of applications, suit and writ petition. According to him, the timing of the actions, both simultaneous and parallel, would 50/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 indicate gross abuse of judicial process. According to him, the very fact that from 2013, till around 2019, the plaintiff in CS.No.223 of 2021 did not raise any objection against the proposed development in the suit C schedule property and asserting ownership now will clearly indicate the hollowness in the plaintiff's claim in CS.No.223 of 2021.
40. Mr.M.S.Krishnan, learned Senior Counsel would further submit that the interim injunction is an equitable remedy and it is a time based action. According to him, a delay in approaching a court is also fatal. He would submit that in the present case, the plaintiff in CS.No.223 of 2021 has not approached the Court from the year 1969 which would amply indicate the lax and her disentitlement to seek any relief, muchless one of an Order of injunction. In support of his submission, he relied upon the judgment of the Hon'ble Supreme Court in the case of Mandali Ranganna & Others v. T.Ramachandra & Others reported in 2008 (4) CTC 360 and in particular, he referred to paragraph 18 in the said decision.
41. Mr.M.S.Krishnan, learned Senior Counsel would further submit that the plaintiff Trust in CS.No.198 of 2016 cannot be compensated the 51/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 sum of more than Rs.60 Crores that was spent on development of the suit C schedule property which has already commenced. According to him, on an average for retention of machineries, a sum of Rs.3 Crores is spent on every month. Hence, according to him, the order of injunction cannot be granted casually sought for as it would have deleterious effect on the plaintiff Trust in CS.No.198 of 2016. Further he would submit that the Trust is spending around Rs.5 Crores every year for the cause of education and the public charities. According to him, the income of the plaintiff Trust is sought to be augmented for the larger benefit of the public and not even a penny can be allowed to go waste.
42. With regard to the contention that the plaintiff in CS.No.223 of 2021 has committed abuse of judicial process is concerned, Mr.M.S.Krishnan, learned Senior Counsel would rely upon the following authorities:
(a) T.Arivandandm vs. T.V.Satyapai and Another reported in (1977) 4 SCC 467;
(b) K.K.Modi vs. K.N.Modi & Others reported in (1998) 3 SCC 52/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 573;
(c) Ranipet Municipality vs. M.Shamsheerkhan reported in (1998) 1 CTC 66;
(d) Prestige Lights Ltd., vs. State Bank of India reported in (2007) 8 SCC 448;
(e) Mandali Ranganna & Others vs. T.N.Ramachandra & Others reported in 2008 (4) CTC 360.
43. Mr.M.S.Krishnan, learned Senior Counsel also drew the attention of this Court to the order dated 26.06.2019 passed by the learned Single Judge of this Court, dismissing the application filed by the plaintiff Trust in CS.No.198 of 2016 and would submit that even though the application for injunction came to be dismissed, the learned Single Judge has observed that the suit B and C schedule properties was divided by a compound wall and that the suit C schedule property is in the absolute possession of M/s.Chettinad Logistics Private Limited, the fifth defendant company as a lessee.
44. Mr.M.S.Krishnan also drew the attention of this court to the 53/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 common order dated 01.10.2020 passed by the Division Bench of this Court in OSA.Nos.194, 196 & 165 of 2020 and would submit that only based on the undertaking given by the Society, the sixth respondent which is running the school that they will not claim equity, if the suit is decreed and only based on the said undertaking, the sixth defendant in CS.No.223 of 2021 was permitted to complete the construction in the suit B schedule property.
45. Mr.M.S.Krishnan, learned Senior Counsel would further contend that the plaintiff in CS.No.223 of 2021 and the other "PARTIES AFFIRMING THE LEASE dated 29.10.2015" are blowing hot and cold by making contradictory statements. According to him, the sixth defendant in CS.No.223 of 2021 is making substantial income by utilising the land for running the school.
46. Mr.M.S.Krishnan, learned Senior Counsel would further contend that the plaintiff in CS.No.223 of 2021 has clearly acquiesced to the ownership of the suit A schedule property by the plaintiff Trust in 54/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 CS.No.198 of 2016. Therefore, the plaintiff in CS.No.223 of 2021 is now estopped from taking a different stand. According to him, the plaintiff in CS.No.223 of 2021 has agreed to the ownership of the Trust in all her pleadings until filing of partition suit and has also been paying rent to the Trust.
47. Mr.M.S.Krishnan, learned Senior Counsel would further submit that the second defendant Trust in CS.No.223 of 2021 cannot feign ignorance of the fact that the purported Will does not deal with the suit schedule properties. According to him, they cannot take any shelter under the residue clause. Mr.M.S.Krishnan, learned Senior Counsel would submit that Kumararani Tmt.Meena Muthiah cannot approbate and reprobate, which when done so would mean that she has made an election and has taken a benefit under and/or arising out of the course of conduct which she has first pursued, which is inconsistent with her stand taken in the suit for partition. Hence according to him, she cannot resile from her stand taken as a tenant on account of election which is barred by the provisions of estoppel as contemplated under Section 115 of the Indian 55/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 Evidence Act.
48. Mr.M.S.Krishnan, learned Senior Counsel would contend that a mere perusal of the cause of action mentioned in the suit CS.No.223 of 2021 will show that the suit is illusory and that Kumararani Tmt.Meena Muthiah has not approached this Court with clean hands. He would submit that Kumararani Tmt.Meena Muthiah would plead that she has understood that she has an undivided share in the larger extent A schedule property and would not mention how and/or when she obtained such knowledge. According to him, the cause of action to maintain the suit is thus vague and hence, injunction ought not to be granted in her favour. He would also submit that one should not forget that the plaintiff in CS.No.223 of 2021 is none other than one of the Founders of the plaintiff Trust in CS.No.198 of 2016.
49. Mr.M.S.Krishnan, learned Senior Counsel would further submit that the arguments on behalf of Kumararani Tmt.Meena Muthiah and Dr.M.A.M.Ramasamy Chettiar of Chettinad Charitable Trust regarding the 56/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 issues being triable and hence, pleading an injunction is inappropriate as the burden of proof lies on them as they assert that the Trust is not the owner, as contemplated under Section 110 of the Evidence Act. Hence according to him, equity lies completely in favour of the Trust and not otherwise.
50. Mr.M.S.Krishnan, learned Senior Counsel would finally conclude his arguements by submitting that the balance of convenience is only in favour of the plaintiff Trust in CS.No.198 of 2016. According to him, as the Trust has spent in excess of Rs.40 Crores towards requisite sanctions and partially towards the construction activity at the suit C schedule property and has also put up initial constructions, it cannot be deprived of its position, by virtue of spurious claims made by the plaintiff in CS.No.223 of 2021 and the second defendant. While on the other hand, the plaintiff and the sixth defendant in CS.No.223 of 2021 who are earning in Crores of Rupees by utilizing the land in the suit B schedule property cannot object to the enjoyment of the property by the plaintiff Trust in CS.No.198 of 2016.
57/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021
51. Mr.M.S.Krishnan, learned Senior Counsel would further submit that the plaintiff in CS.No.223 of 2021 is enjoying 70% of the suit A schedule property, whereas the plaintiff Trust in CS.No.198 of 2016 is proposing to put up construction in the 30% land, which in anyway even if the worst case, the present suit gets decreed, cannot be lost. Hence according to Mr.M.S.Krishnan, learned Senior Counsel, the balance of convenience completely lies in favour of the Plaintiff Trust in CS.No.198 of 2016.
52. Mr.M.S.Krishnan, learned Senior Counsel would further contend that the plaintiff Trust in CS.No.198 of 2016 has been involved in various charitable purposes and hence, seeking an injunction against it from utilizing its property to generate revenue is inequitable, unjust and unfair. According to him, this Court being the guardian of all the public charitable Trust cannot sit as mute spectator when the money of Public getting wasted by virtue of frivolous litigations. According to him, this Court having the “Parens Patriae” Jurisdiction over all the public charitable 58/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 Trust, should come to the rescue of the plaintiff Trust in CS.No.198 of 2016 and exercise its power to protect the interest and permit it to develop the suit C schedule property.
53. According to Mr.M.S.Krishnan, learned Senior Counsel, the plaintiff in CS.No.223 of 2021 has neither made out a prima facie case nor is balance of convenience in her favour. According to him, the plaintiff in CS.No.223 of 2021 will not suffer any irreparable injury, if the Application seeking injunction is disallowed.
54. In support of his submissions, he relied upon the oft-quoted decision of the Hon'ble Supreme Court in the case of Gujarat Bottling Co. Ltd., and others vs. Coca Cola & Others reported in (1995) 5 SCC 545.
55. Mr.V.Raghavachari, learned Counsel for the fourth defendant in CS.No.223 of 2021 who claims to be the adopted son of Dr.M.A.M.Ramasamy and the Managing Trustee of the plaintiff Trust in CS.No.198 of 2016 sails along with Mr.M.S.Krishnan, learned Senior 59/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 Counsel and in addition to the arguments made by Mr.M.S.Krishnan, he would submit that in principle, Kumararani Tmt. Meena Muthiah cannot approbate and reprobate which when done so would mean that she has made an election and has taken a benefit under and/or arising out of the course of conduct which she has first pursued, which is inconsistent with her stand taken in the suit for partition. Hence according to him, she cannot resile from her stand taken as a tenant on account of election which is barred by the provisions of estoppel as contemplated under Section 115 of the Evidence Act.
56. Mr.V.Raghavachari, learned counsel also emphasised that Kumararani Tmt. Meena Muthiah on account of challenging the title of the Trust after accepting its title, should now surrender vacant possession of the suit B schedule property, as contemplated under section 111(g) of the Transfer of Property Act and section 116 of the Indian Evidence Act. According to him, it is settled law that a person with two alternative remedies having perused one and received benefits thereby, will have to restore what he/she has received while electing the other remedy at a later 60/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 point of time. According to him, admission and estoppel are two different concepts and admission is a piece of evidence, but estoppel creates title.
57. Mr.V.Raghavachari, learned Counsel would further submit that since the plaintiff in CS.No.223 of 2021 has received benefits by acquiescing to the lease will have to surrender possession of the suit B schedule property to the plaintiff Trust in CS.No.198 of 2016 as she has now changed her stand by filing a suit for partition.
58. In support of his submissions made under section 115 of the Indian Evidence Act, Mr.V.Raghavachari, learned counsel relied upon the following authorities:
(a) Panchan Pal vs. Nirode Kumar Biswas reported in AIR 1962 Cal 12;
(b) Rao Saheb. vs. Rangnath Gopalrao Kawathekar (Dead by LRs and others) reported in (1972) 4 SCC 181;
(c) Bhagwat Sharan (Dead thorugh Lrs) vs. Purushottam and others reported in (2020) 6 SCC 387;
61/124
https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021
59. In support of his submissions made under section 116 of the Indian Evidence Act, Mr.V.Raghavachari, learned counsel relied upon the following authorities:
(a) D.Satyanarayana vs. P. Jagadish reported in (1987) 4 SCC 424;
(b) Anar Devi vs. Nathu Ram reported in (1994) 4 SCC 250;
(c) S. Thangappan vs. P.Padmavathy reported in (1999) 7 SCC 474;
(d) Karam Kapahi & Others vs. Lal Chand Public Charitable Trust & Another reported in (2010) 4 SCC 753;
(e) Kamaljit Singh v. Sarabjith Singh reported in (2014) 16 SCC 472.
60. Mr.T.Mohan, learned Counsel for M/s.Chettinad Logistics Private Limited, the third defendant in CS.No.198 of 2016 and the fifth defendant in CS.No.223 of 2021 who claims to be a tenant under the plaintiff Trust in CS.No.198 of 2016 under lease deed dated 28.03.2011 62/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 would submit as follows:
(a) M/s.Chettinad Logistics Private Limited supports the case of the plaintiff Trust in CS.No.198 of 2016 as a valid lease deed dated 28.03.2011 has been executed in their favour by the plaintiff Trust in CS.No.198 of 2016.
(b) A suit was filed by M/s.Chettinad Logistics Private Limited for a permanent injunction aggrived by the sixth defendant Society's interference with its peaceful possession and enjoyment of the suit schedule property in O.S.No.201 of 206 on the file of the VIth Assistant City Civil Court, Chennai.
(c) Interim injunction was granted in favour of M/s.Chettinad Logistics Private Limited by the learned VIth Assistant Judge, City Civil Court, Chennai in I.A.No.436 of 2016 in O.S.No.201 of 2016 on 11.04.2016 which was also confirmed by the Lower Appellate Court viz., Vth Additional City Civil Court, Chennai by its Order dated 30.07.2019 in CMA.No.68 of 2016. The Sixth defendant Society was a party to the suit O.S.No.201 of 2016 on the file of the VIth Assistant City Civil Court, Chennai. Therefore, the question of collusion between the plaintiff Trust in 63/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 CS.No.198 of 2016 and M/s.Chettinad Logistics Private Limited, the tenant will not arise.
(d) M/s.Chettinad Logistics Private Limited is in possession of the suit C schedule property paying a monthly rent of Rs.2,00,000/- eversince the date of lease dated 28.03.2011. The plaintiff in CS.No.223 of 2021 and the sixth defendant Society in the said suit are also aware of the same.
(e) The development of the suit C schedule property by the plaintiff Trust in CS.No.198 of 2016 is only for the benefit of M/s.Chettinad Logistics Private Limited as the plaintiff Trust has agreed to provide constructed space in the newly constructed building to M/s.Chettiand Logistics Private Limited on completion.
(f) The balance of convenience is only in favour of the plaintiff Trust in CS.No.198 of 2016. The school is not in possession of the suit C schedule property and the possession is only with M/s.Chettinad Logistics Private Limited which is a tenant under the plaintiff Trust in CS.No.198 of 2016 under a lease deed dated 28.03.2011. There is also a compound wall separating the suit C schedule property and suit B schedule property. 64/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 Discussion :
61. The power to grant a temporary injunction lies with the discretion of the Court. However, the discretion should be exercised reasonably, judiciously and on sound legal principles. The triple tests that will have to be satisfied for grant of temporary injunction are :
a) prima facie case,
b) balance of convenience and
c) irreparable injury
62. Grant of interim injunction depends upon the facts and circumstances of each case as no strait-jacket formula can be laid down. It is settled law that while hearing applications for grant of temporary injunction, the following considerations are required to be weighed by the Court :
a) Extent of damages being an adequate remedy;
b) Protect the plaintiff's interest for violation of his rights though however having regard to the injury that may be suffered by the defendants by reason therefor;
65/124
https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021
c) The Court while dealing with the matter ought not to ignore the factum of strength of one party's case being stronger than the others;
d) No fixed rules or notions ought to be had in the matter of grant of injunction but on the facts and circumstances of each case, the relief is kept flexible.
e) The issue is to be looked from the point of view as to whether on refusal of the injunction, the plaintiff would suffer irreparable loss and injury keeping in view the strength of the case.
f) Balance of convenience or inconvenience ought to be considered as an important requirement, even if there is a serious question or prima facie case in support of the grant.
g) Whether the grant or refusal of injunction will adversely affect the interest of the general public which can or cannot be compensated otherwise.
63. The aforesaid principles have also been followed by the Hon'ble Supreme Court in its various decisions including 66/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021
i) Colgate Palmolive (India) Ltd. vs. Hindustan Lever Ltd., reported in AIR 1999 SC 3105 and
ii) Gujarat Bottling Co. Ltd. vs. Coca Cola Company and others, reported in 1995 (5) SCC 545
64. The expression “prima facie” means at the first sight or on the first appearance or on the face of it or so far as it can be judged from the first disclosure. Prima facie case means that evidence brought on record would reasonably allow the conclusion that the plaintiff seeks.
65. The second condition for grant of an interim injunction is the balance of convenience which must be in favour of the applicant. In other words, the Court must be satisfied with the comparative mischief, hardship or the inconvenience which is likely to be caused to the applicant by refusing injunction will be greater than that which is likely to be caused to the opposite party by granting it. Hence, it is the duty of the Court to consider the convenience of the plaintiff as against the convenience of the defendant. If the Court thinks that by refusing an injunction is greater or 67/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 more inconvenience will be caused to the plaintiff, it will grant interim injunction. However, if the Court finds that greater inconvenience will be caused to the defendant then it will refuse the relief.
66. The Court while granting or refusing injunction shall exercise sound, judicious discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties if the injunction is refused and compare it with that it is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of the likelihood of injury and if the Court considers that pending the suit, the subject-matter should be maintained in the statusquo, an injunction would be issued. In other words, the plaintiff has to show that the comparative mischief from the inconvenience which will arise from withholding the injunction will be greater than the convenience which is likely to arise from granting it. There must be a proper balance between the parties and the balance cannot be a one-sided balance.
67. The grant of interim injunction being an equitable relief, the 68/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 Court must keep in mind all the equitable considerations. The relief can be granted only if justice, equity and good conscience requires. Hence, the Court should follow all the sound judicial principles and must ensure that there is an equal and proper balance between the interests of the parties.
68. A leading English decision on balance of convenience is the case of American Cyanamid Co. v. Ethicon Ltd. reported in 1975 AC 396 wherein Lord Diplock made the following observations :-
“The object of the interlocutory injunction is to protect the plaintiff against the injury for violation of his rights for which, he could not be adequately compensated in damages recoverable in the action if the uncertainity were resolved in his favour at the trial; but the plaintiff's need for such a protection must be weighed against the need of the defendant to be protected against the injury resulting from him having been prevented from exercising his own legal rights for which he could not be adequately compensated under the plaintiff's undertaking in damages if the uncertainty were resolved in the defendant's favour at the trial. The court must weigh one need against another and determine where 'the balance of convience 69/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 lies'.
69. In the case on hand, balance of convenience is an important aspect to be considered by this Court as comparative hardships between the parties affirming the lease dated 29.10.2015 and the parties who are disputing the lease dated 29.10.2015 requires to be weighed for the purpose of determining the balance of convenience.
70. Irreparable injury : Irreparable injury, is the third test to be satisfied. Irreparable injury means such injury which cannot be adequately remedied by damages. The remedy by damages would be inadequate if the compensation ultimately payable to the plaintiff in case of success in the suit would not place him in the position in which he was before when injunction was refused.
71. The Hon'ble Supreme Court in the case of Dalpat Kumar & Anr. V Prahlad Singh & Ors reported in AIR 1993 SC 276 explained the scope of aforesaid material circumstances and observed as under :- 70/124
https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 The phrases 'prima facie case', 'balance of convenience' and irreparable loss' are not rhetoric phrases for incantation, but words of width and elasticity to meet myriad situations presented by man's ingenuity in given facts and circumstances, but always is hedged with sound exercise of judicial discretion to meet the ends of justice.
72. For the purpose of deciding whether the applicant in O.A.No.334 of 2021 and O.A.No.412 of 2021 are entitled for interim injunction as prayed for or not, this Court will have to first bear in mind the following facts :
a) The suit “A” schedule property is the entire extent measuring approximately 127 grounds. The suit schedule “B” property measuring approximately 86 grounds which is a major portion of the suit Schedule “A” property is admittedly in possession and enjoyment of “Chettinad Vidyashram” school run by the 6th defendant society in C.S. No.223 of 2021 and managed by the plaintiff in the said suit. In these interlocutory applications, the suit “C” schedule property measuring 41.630 grounds approximately which is the remaining portion in suit Schedule “A” property is the subject matter of consideration.
b)“PARTIES AFFIRMING THE LEASE dated 29.10.2015” 71/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 state that suit “C” schedule property is also in the possession of “Chettinad Vidyashram” school, whereas the “PARTIES DISPUTING THE LEASE dated 29.10.2015” state that suit “C” schedule property is in the possession of M/s.Chettinad Logistics Private Ltd., the third defendant in C.S. No.198 of 2016. M/s.Chettinad Logistics Private Limited, the third defendant in C.S. No.198 of 2016 and the 5th defendant in C.S. No.223 of 2021. According to them M/s. Chettinad Logistics Limited has been validly inducted as a tenant under a lease deed dated 28.03.2011 executed by the Plaintiff Trust in C.S. No.198 of 2016.
c) In the suit C.S. No.198 of 2016 filed challenging the lease dated 29.10.2015, the “PARTIES DISPUTING THE LEASE dated 29.10.2015” state that the “PARTIES AFFIRMING THE LEASE dated 29.10.2015” have not filed any resolution passed by the Board of Trustees of the plaintiff Trust in C.S.No.198 of 2016 for enabling Dr.M.A.M.Ramasamy, the then Managing Trustee to execute the lease deed on behalf of the Plaintiff Trust in C.S.No.198 of 2016 in favour of the Sixth defendant Society in C.S. No.223 of 2021 which is managed by 72/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 the plaintiff in C.S. No.223 of 2021.
d) The agreement of Gift Deed dated 09.03.1969 executed by Rajah Sir Muthiah Chettiar, Chettinad and Kumara Rajah M.A.M.Muthiah Chettiar in favour of the the plaintiff Trust in C.S. No.198 of 2016 is an unregistered agreement of gift. Mr.Kumara Rajah M.A.M.Muthiah Chettiar is the husband of Kumararani Tmt. Meena Muthiah, the plaintiff in C.S. No.223 of 2021, who has sought for partition.
e) Rajah Sir Muthiah Chettiar, Chettinad has executed a registered Deed of Declaration of Trust dated 28.03.1970 under which the suit schedule “A” property was donated to the plaintiff Trust in C.S. No.198 of 2016.
f) Mr.Kumara Rajah M.A.M.Muthiah Chettiar, who was having half share in the suit schedule “A” property and who died on 24.01.1970 after executing the agreement of Gift dated 09.03.1969 is not a party to the Deed of Declaration of Trust dated 28.03.1970.
g) The plaintiff Trust in C.S. No.198 of 2016 represented by its then 73/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 Managing Trustee Dr.M.A.M.Ramasamy has executed a registered Gift Deed dated 10.03.1995 in favour of the Chennai Corporation for the purpose of laying road in the suit schedule “A” property. Under the Gift Deed, the plaintiff Trust in C.S. No.198 of 2016 has claimed ownership of the entire suit Schedule “A” property.
h) A meagre sum of Rs.12,000/- has been paid by "Chettinad Vidyashram” school as monthly rent to the plaintiff Trust in C.S. No.198 of 2016.
i) The unregistered lease deed dated 28.03.2011 has been executed by the plaintiff Trust in C.S. No.198 of 2016 in favour of M/s.Chettinad Logistics Private Limited, the third defendant in C.S. No.198 of 2016 and the fifth defendant in C.S. No.223 of 2021 for the suit “C” schedule property and as per the said lease deed M/s. Chettinad Logistics Private Limited will have to pay the plaintiff Trust in CS No.198 of 2016 a monthly rent of Rs.2,00,000/-
74/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021
j) On 02.08.2012, the then Board of Trustees of the plaintiff Trust in C.S. No.198 of 2016 have passed a resolution on behalf of the Trust agreeing to construct multi-storied commercial building over the suit “C” schedule property and Mr.M.A.M.R. Muthiah, the Trustee, who is claiming to be the adopted son of Dr.M.A.M.Ramasamy and who is the fourth defendant in C.S. No.223 of 2021 was authorised to sign applications in all forms required for the purpose of getting approval for constructing the multi-storied building from the statutory authorities like Chennai Metropolitan Development Authority(CMDA), Corporation of Chennai and all other State Government and also Central Government departments. After the resolution, the general Power of Attorney dated 10.08.2012 was also executed by the plaintiff Trust in C.S. No.198 of 2016 represented by its Managing Trustee Dr.M.A.M.Ramasamy in favour of Mr.M.A.M.R.Muthiah for the purpose of getting approval for constructing a multi storied building over the suit “C” schedule property.
k) All the parties agree that there were differences betweeen Dr.M.A.M.Ramasamy and his adopted son Mr.M.A.M.R.Muthiah ever 75/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 since the year 2014. The “PARTIES AFFIRMING THE LEASE” deed dated 29.10.2015 state that Mr.M.A.M.R.Muthiah was disowned by Dr.M.A.M.Ramasamy.
l) On 29.10.2015, a registered lease deed has been executed by the plaintiff Trust in C.S. No.198 of 2016 represented by its Trustee Dr.M.A.M.Ramasamy in favour of the Sixth defendant Society in C.S. No.223 of 2021, which is running the Chettinad Vidyashram school, for the entire “A” schedule property measuring approximately 127 grounds. The said lease deed has been disputed by the plaintiff Trust represented by its Trustee Mr.RM.Palaniappan on the ground that it is a forged document obtained due to the undue influence exercised by Kumararani Tmt. Meena Muthiah, the plaintiff in C.S. No.223 of 2021 and another person by name Mr.A.C.Muthiah. According to the “PARTIES DISPUTING THE LEASE” dated 29.10.2015, Kumararani Tmt. Meena Muthiah and the Sixth defendant Society in C.S. No.223 of 2021 were never put in possession of the suit “C” schedule property and the Chettinad Vidyashram school exists only in the suit Schedule “B” property. 76/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 According to them M/s.Chettinad Logistics Private Limited, the tenant under the lease deed dated 28.03.2011 is in possession of the suit “C” schedule property and they are a legally inducted tenant.
m) A notice has been issued by the plaintiff Trust in C.S. No.198 of 2016 on 11.12.2015 to the Sixth defendant Society in C.S. No.223 of 2021 which is running the school “Chettinad Vidyashram" ” intimating them that the lease deed dated 29.10.2015 has been executed without any sanction from the Board of Trustees and therefore cannot have any binding effect on the Trust. They have also informed that the Trustees have unanimously decided to nullify and cancel the Lease Deed dated 29.10.2015.
n) A reply dated 18.12.2015 has also been sent by the Sixth defendant Society in C.S. No.223 of 2021 denying the allegations stating that a valid lease deed dated 29.10.2015 was executed in their favour and is binding on the plaitniff Trust in C.S. No.198 of 2016. 77/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021
o) M/s.Chettinad Logistics Private Limited filed a suit before the VI Assistant City Civil Court at Chennai in O.S. No.201 of 2016 against the plaintiff Trust in C.S. No.198 of 2016, one Mr.RM. Palaniappan, its Trustee and the Sixth defendant Society in C.S. No.223 of 2021, which is running the school “Chettinad Vidhyashram” seeking for a declaration that the lease deed dated 29.10.2015 in favour of the Sixth defendant Society in C.S. No.223 of 2021 is null and void and also for permanent injunction restraining the defendants in the said suit from in any manner interfering with M/s.Chettinad Logistics Private Limited's peaceful possession and enjoyment of the suit schedule “C” property over which property they claim that they are a legally inducted tenant.
p) By order dated 11.01.2016 in I.A. No.436 of 2016 in O.S. No.201 of 2016, the learned VI Assistant Judge, City Civil Court at Chennai allowed the application and granted interim injunction as prayed for by restraining the plaintiff Trust in C.S. No.198 of 2016 from interferring with M/s.Chettinad Logistics Private Limited's peaceful possession and enjoyment of the suit “C” schedule property. 78/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021
q) In C.M.A. No.68 of 2016 by order dated 30.07.2019, learned V Additional Judge, City Civil Court, Chennai confirmed the order dated 11.04.2016 passed by the trial Court in I.A. No.436 of 2016 in O.S. No.201 of 2016 and dismissed the said appeal. Both I.A. Nos. 436 of 2016 in O.S. No.201 of 2016 and C.M.A. No.68 of 2016 were hotly contested matters.The order dated 30.07.2019 passed in C.M.A. No.68 of 2016 on the file of the V Additional Court , City Civil Court, Chennai has also attained finality as no further appeal was filed but however, the suit O.S. No.201 of 2016 is still pending on the file of the trial Court.
r) The lease in favour of M/s.Chettinad Logistics Private Limited is said to have been renewed for a further period of six years under a renewal of lease deed dated 01.06.2017 executed by the plaintiff Trust in C.S. No.198 of 2016.
s) Dr.M.A.M.Ramasamy created a Trust by name Dr.M.A.M.Ramasamy Chettiar of Chettinad Charitable Trust on 79/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 09.02.2015 under a registered Trust deed and his last Will and Testament dated 18.02.2015 in which his adopted son Mr.M.A.M.RMuthiah and his wife Sigapi Ramasamy were the beneficiaries was cancelled and were replaced by the second defendant Trust in C.S. No.223 of 2021 as the beneficiary.
t) By a common order dated 26.06.2019 passed in O.A. Nos.238 and 239 of 2016 and Application No.1831 of 2016 in C.S. No.198 of 2016, a learned Single Judge of this Court dismissed all the aforementioned interlocutory applications. In the said order, the learned Single Judge of this Court in paragraph No.6.1 however observed that insofar as “C” schedule property is concerned, it is well separated by a compound wall and the sixth defendant Society in C.S. No.223 of 2021 which is running the school has got nothing to do with the same and it is in possession of M/s.Chettinad Logistics Pvt. Ltd., the third defendant in C.S. No.198 of 2016.
(u) In paragraph No.8 of the very same order the learned Single 80/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 Judge has observed that admittedly, the first defendant Society which is running the school “Chettinad Vidyashram” was given permission by the plaintiff Trust in C.S. No.198 of 2016 to occupy the suit “B” schedule property for the purpose of running the school and that M/s.Chettinad Logistics Private Limited, the third defendant in C.S. No.198 of 2016 is in possession of the suit “C” schedule property. The learned Single Judge has also observed that whether the school has to be displaced or the constructions have to be stopped would depend upon the validity of the lease deed dated 29.10.2015. The learned Single Judge has also observed that whether the said lease deed was obtained by coercion, undue influence or it is for the noble purpose of expanding the school to comply with the CBSE norms are all to be decided only in the suit, after trial.
v) By a common order dated 01.10.2020 passed in the appeals filed by the plaintiff Trust in C.S. No.198 of 2016 in O.S.A. Nos.194, 196 and 165 of 2020 aggrieved by the order dated 26.06.2019 passed in O.A. Nos.238 of 2016 and 239 of 2016 and ApplicationNo.1831 of 2016 in C.S. No.198 of 2016, a Division Bench of this Court after recording the 81/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 undertaking given by Mr.AR. L. Sundaresan, learned Senior counsel that Kumararani Tmt. Meena Muthiah and Kumararajah Muthiah School of Traditional Arts and Crafts, the contesting respondents in the aforementioned O.S.As undertake that they shall not put up any further construction on the disputed site in question i.e., the suit schedule “A” property. After recording the aforementioned undertaking, the Division Bench of this Court in the aforementioned order disposed of O.S.A Nos. 194 and 165 of 2020 in terms of the said undertaking. O.S.A. No.196 of 2016 which was filed challenging the order dated 26.06.2019 passed in Application No.1831 of 2016 in C.S. No.198 of 2016 seeking for Mesne profits for the alleged unlawful use and occupation of the suit schedule “A” property by Kumararani Tmt. Meena Muthiah and Kumararajah Muthiah School of Traditional Arts and Crafts which is running the school was remanded back to the learned Single Judge for fresh consideration since the same was not considered by the learned Single Judge in the earlier order dated 26.06.2019.
w) After the disposal of O.S.A Nos.194, 196 and 165 of 2020 by the Division Bench of this Court on 01.10.2020, Kumararani Tmt. Meena 82/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 Muthiah and Kumararajah Muthiah School of Traditional Arts and Crafts, the registered society which is running the school filed O.A. No.324 of 2016 in C.S. No.198 of 2016 seeking for an order of interim injunction restraining the plaintiff Trust in CS No.198 of 2016 and M/s.Chettinad Logistics Private Limited from putting up any construction over the suit “C” schedule property.
x) Thereafter Kumararani Tmt. Meena Muthiah filed a suit on 14.06.2021 against the plaintiff Trust in C.S. No.198 of 2016 and others which includes M/s.Chettinad Logistics Private Limited seeking for partition claiming 5/32 share in the suit “A” schedule property.
y) Dr.M.A.M.Ramasamy Chettiar of Chettinad Charitable and Trust represented by its Managing Trustee Dr.A.C.Muthiah, the second defendant in C.S. No.223 of 2021 in which Dr.M.A.M. Ramasamy is the founder has also filed a Writ petition before this Court in WP No. 18058 of 2021 on 14.06.2021 challenging the building plan permission granted by the Chennai Metropolitan Development Authority(CMDA), in favour of the plaintiff Trust in C.S. No.198 of 2016 for development of the suit “C” schedule property.
83/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 z) By order dated 27.08.2021 in WMP Nos.19288, 19285, 19286 and 19289 of 2021 in WP No.18058 of 2021, the writ Court had granted interim stay. It is now brought to the notice of this Court that the said writ petition along with the connected WMPs were argued by the respective Counsels and it is reserved for orders by another learned Single Judge of this Court.
aa) The plaintiff Trust in C.S. No.198 of 2016 has pleaded that in excess of Rs.40,00,00,000/- (Rupees Forty Crores only), the Trust has already incurred expenditure for the purpose of obtaining planning permission for constructing the multi-storied building over the suit “C” schedule property and the Trust has also produced before this Court, a receipt dated 10.07.2020 issued by the Chennai Metropolitan Development Authority, in favour of the plaintiff Trust in C.S. No.198 of 2016 for a sum of Rs.35,91,90,000/-.
ab) The Will dated 18.02.2015 executed by Dr.M.A.M.Ramasamy 84/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 does not specifically include the suit schedule property though other properties are mentioned. According to the plaintiff in C.S. No.223 of 2021 as there is a residual clause in the said Will, the property described in the suit Schedule “A” is also the subject matter of the Will dated 18.02.2015 executed by Dr.M.A.M.Ramasamy. The plaintiff in C.S. No.223 of 2021, Kumararajah Muthiah School of Traditional Arts and Crafts, the Society which is running the school “Chettinad Vidyashram” have not challenged the Deed of declaration of Trust dated 20.08.1970 under which the entire suit Schedule “A” property was donated to the plaintiff Trust in C.S. No.198 of 2016. In the earlier round of litigation involving interlocutory applications in C.S. No.198 of 2016 also, the plaintiff in C.S. No.223 of 2021 viz., Kumararani Tmt. Meena Muthiah did not claim ownership in her individual capacity and did not claim partition as sought for in C.S. No.223 of 2021. C.S. No.223 of 2021 was filed only after the common order dated 01.10.2020 came to be passed by the Division Bench of this Court in O.S.A. Nos.194, 196 and 165 of 2020. It is to be noted that both the suit C.S. No.223 of 2021 seeking for partition as well as the Writ Petition filed by Dr.M.A.M.Ramasamy, Chettiar of 85/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 Chettinad Charitable and Educational Trust, the second defendant in C.S. No.223 of 2021 were filed simultaneously.
ac) In all her pleadings prior to the institution of the suit C.S. No.223 of 2021 Kumararani Tmt. Meena Muthiah never claimed partition and never claimed ownership of any extent in the suit schedule “A” property but only claimed the rights pursuant to the lease deed dated 29.10.2015 executed by the plaintiff Trust in C.S. No.198 of 2016 in favour of Kumararajah Muthiah School of Traditional Arts and Crafts, the Society which is running the school and which is managed by Kumararani Tmt. Meena Muthiah.
Analysis of the dispute :
73. This Court shall now analyse whether the plaintiff and the sixth defendant Society in C.S. No.223 of 2021 have satisified the triple tests of prima facie case, balance of convenience and irreparable injury to enable them to get an order of interim injunction from this Court as prayed for in O.A. No.334 of 2021 in C.S. No.198 of 2016 and O.A. No.412 of 2021 in 86/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 CS No.223 of 2021.
74. Insofar as O.A. No.334 of 2021 in C.S. No.198 of 2016 and O.A. No.412 of 2021 in C.S. No.223 of 2021 are concerned, the injunction relief sought for in those applications are restricted only to suit “C” schedule property which admittedly is a vacant land. The school “Chettinad Vidyashram” is situated only in the suit “B” schedule property measuring 86 grounds approximately. The plaintiff and the sixth defendant Society's possession of the suit schedule “B” property is protected by a common order of the Division Bench of this Court on 01.10.2020 passed in O.S.A. Nos.194, 196 and 165 of 2020, wherein the Division Bench after recording the undertaking given by the learned Senior Counsel appearing for Kumararani Tmt. Meena Muthiah and the sixth defendant Society that they shall not put up any further construction in the suit schedule “A” property disposed of the aforementioned O.S.A.s and therefore, the order dated 26.06.2019 passed by the learned Single Judge of this Court in O.A. Nos.238 and 239 of 2016 and Application No.1831 of 2016 in C.S. No. 198 of 2016 stood confirmed excepting for the 87/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 aforementioned undertaking of Kumararani Tmt. Meena Muthiah and the Society recorded by the Division Bench of this Court in its order dated 01.10.2020.
75. Kumararani Tmt. Meena Muthiah has claimed partition of 5/32 share in the suit schedule “A” property as according to her the agreement of Gift Deed dated 09.03.1969 being an unregistered agreement is not admissible in the eye of law and therefore the alleged gift executed by Raja Sir M.A. Muthiah Chettiar and Chettinad Kumararajah M.A.Muthiah Chettiar in favour of the plaintiff Trust in C.S. No.198 of 2016 cannot be acted upon as it is an invalid agreement of gift.
Kumararani Tmt. Meena Muthiah traces her 5/32 share in the suit schedule “A” property on the ground that the agreement of gift deed dated 09.03.1969 is invalid and therefore Kumararajah M.A.Muthiah Chettiar's half share in the suit schedule property was retained and was not donated to the plaintiff Trust in C.S. No.198 of 2016 under the Deed of Declaration of Trust dated 28.03.1970.
88/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021
76. According to the plaintiff in C.S. No.223 of 2021, as seen from the submissions made by Mrs.Chitra Sampath, learned Senior counsel, a dedication for a charitable purpose can be made only by a registered instrument and only for a dedication made to God, there is no necessity for registration. The learned counsels appearing for the PARTIES AFFIRMING THE LEASE deed dated 29.10.2015 and the PARTIES DISPUTING THE SAID LEASE DEED have relied upon various authorities for and against the contention of the plaintiff with regard to the requirement of registration.
77. The contention of the “PARTIES DISPUTING THE LEASE DEED dated 29.10.2015” is that the plaintiff Trust in C.S. No.198 of 2016 is not a living person coming within the meaning of Section 5 of the Transfer of propety Act and therefore, the judgments relied upon by Mrs.Chitra Sampath, learned Senior Counsel will infact support the contention of the “PARTIES DISPUTING THE LEASE DEED dated 29.10.2015” that the agreement of Gift Deed dated 09.03.1969 executed by Raja Sir M.A. Muthiah Chettiar, Chettinad and Kumararajah 89/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 M.A.Muthiah Chettiar in favour of the plaintiff Trust in C.S. No.198 of 2016 does not require registration. According to them, whether the dedication was made to God or for a public chartiable purpose is immaterial as both the dedications are not made to a living person and therefore any instrument recording the said transaction does not require registration. As seen from the judgments relied upon by the learned counsels for and against the contention that dedication for a public charitable purpose requires registration is concerned, it is a debatable issue which requires further consideration and can be decided only after trial.
78. The Division Bench judgment involving the very same agreement of Gift Deed dated 09.03.1969 which is questioned by the PARTIES AFFIRMING THE LEASE deed dated 29.10.2015 was the subject matter of consideration in an Income tax matter by a Decision Bench of this Court in the case of Dr. Raja Sir M.A. Muthiah Chettiar V. Commissioner of Income-Tax, Madras reported in 1983 SCC online Mad 247. Though the exemption sought for from payment of tax 90/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 was negatived by the Division Bench in the aforesaid decision, the Division Bench has confirmed that title over the property has been transferred to the plaintiff Trust in C.S. No.198 of 2016 with effect from 08.03.1971 i.e., after the execution of the declaration of Trust dated 28.03.1970 in respect of the entire suit “A” schedule property.
79. Paragraph 22 of the aforesaid decision is extracted hereunder :-
22. Hence, for the purpose of assessment under the head “Income from property” under the I.T. Act, 1961, one has to go only by the ownership and not by the fact as to who is in actual receipt of the income from the property. We are not inclined to accept the third contention advanced on behalf of the assessee that there has been a diversion of income by overriding title in the present case and, therefore, the income from the Chettinad Colony properties cannot be assessed in the hands of the assessee. We do not see how the principle of diversion of income by overriding title could be invoked by the assessee, on the facts and in the circumstances of this case.
Since the assessee's contention that the title had already passed from the donor to the trust on February 9, 1969, itself has not been accepted and it has been found that the title passed from the donor to the trust only on March 8, 1971, the assessee in this case continued to be the owner of the property till March 8, 1971, 91/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 and, therefore, it is only the assessee who has to be assessed on the income from those properties. From the mere fact that the assessee has chosen to permit the trust to enjoy the income therefrom, it cannot be taken to be a diversion of income by overriding title.
80. Admittedly until the filing of the suit in C.S.No.223 of 2021 for partition, netither Kumararani Tmt. Meena Muthiah, the plaintiff therein or the sixth defendant Society which is running the school “Chettinad Vidyashram” in the “B” schedule property have challenged the execution of the deed of Declaration of trust dated 28.03.1970 for the entire “A” schedule property or the agreement of Gift Deed dated 09.03.1969. Subsequently Dr.M.A.M.Ramasamy has also executed a Gift Deed in favour of Chennai Corporation under a registered Gift Deed dated 10.03.1995 for the purpose of laying a road in the schedule “A” property and a portion of the land was gifted by the plaintiff Trust in C.S. No.198 of 2016 in favour of the Chennai Corporation under the Gift Deed. The said Gift Deed executed by the plaintiff Trust on 10.03.1995 in favour of Chennai Corporation was also not challenged by the plaintiff in C.S. No.223 of 2021. Only with the knowledge of the plaintiff in C.S. No.223 92/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 of 2021, the Society which is running the school has also been paying the rent to the plaintiff Trust in C.S. No.198 of 2016 though the plaintiff in C.S. No.223 of 2021 states that only on the request made by her family members, she has made the contribution of Rs.12,000/-p.m., which has been paid by the school.
81. The pleadings of Kumararani Tmt. Meena Muthiah and the Society which is running the school in the previously instituted suit by the plaintiff Trust in C.S. No.198 of 2016 contradicts her statement made in the plaint as well in the affidavit in C.S. No.223 of 2021, wherein, she claims ownership of 5/32rd share by way of inheritance and has disputed the Deed of Declaration of Trust dated 28.03.1970 for the entire suit “A” schedule property by which the plaintiff Trust in C.S. No.198 of 2016 became the absolute owner. Contradictory statements have been made by the plaintiff Kumararani Tmt. Meena Muthiah in both the suits viz., C.S. No.198 of 2016 and C.S. No.223 of 2021. The documents subsequently executed after the deed of declaration of Trust deed dated 28.03.1970 under which the plaintiff Trust in C.S. No.198 of 2016 claims to have 93/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 become the absolute owner of the suit “A” schedule property were not disputed by the plaintiff in C.S. No.223 of 2021 or the sixth defendant Society earlier which prima facie shows that the plaintiff in C.S. No.223 of 2021 and the sixth defendant Society have recognised the ownership of the plaintiff Trust in C.S. No.198 of 2016.
82. After a lapse of more than 50 years from the date of the agreement of Gift deed dated 09.03.1969 and the Deed of Declaration of Trust dated 28.03.1970, the plaintiff in C.S. No.223 of 2021 has taken a diametrically opposite stand disputing the Deed of Declaration of Trust deed dated 28.03.1970 under which the entire suit schedule “A” property was donated to the plaintiff Trust in C.S. No.198 of 2016.
83. A party seeking equitable relief must approach the Court with clean hands and there shall not be any suppression or inconsistency. The plaintiff in C.S. No.223 of 2021 has now taken a completely contradictory stand to what was taken in C.S. No.198 of 2016. In C.S. No.223 of 2021, the plaintiff has sought for partition whereas in C.S. No.198 of 2016, 94/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 Kumararani Tmt. Meena Muthiah as well as the Society which is running the school have relied upon the lease deed dated 29.10.2015 for the purpose of protecting their possession over the entire suit “A” schedule property. Though the plaintiff in C.S. No.223 of 2021 may plead that as a co-owner such an inconsistent stand can be legally taken, the said issue cannot be decided in an interlocutory application but can be decided only after trial. Therefore, the judgments relied upon by Mrs. Chitra Sampath, learned Senior Counsel for Kumararani Tmt. Meena Muthiah and the Society that as a co-owner of the suit Schedule “A” property even though the lease deed dated 29.10.2015 was recognised by the plaintiff in C.S. No.223 of 2021 can claim partition cannot be decided in an interlocutory application but if at all can be decided only after trial.
84. While deciding whether a prima facie case has been made out or not, at the first sight or on the first appearance or on the face of it or so far as it can be judged from the first disclosure, this Court must be satisfied that the evidence brought on record would reasonably allow the conclusion that the plaintiff is entitled for the relief of interim injunction. Such is not 95/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 the case of the plaintif in C.S. No.223 of 2021 and the sixth defendant Society as the documents from 09.03.1969 which is the agreement of Gift and till the filing of the suit in C.S. No.223 of 2021 seeking for partition, the plaintiff had taken a stand that the suit “A” schedule property is absolutely owned by the plaintiff Trust in C.S. No.198 of 2016 and she has also recognised the lease deed dated 29.10.2015 executed by the Trust in favour of the Society viz., sixth defendant in C.S. No.223 of 2021 which is running the school. However only for the first time in C.S. No.223 of 2021, the plaintiff Kumararani Tmt. Meena Muthiah is seeking for a partition claiming inheritance. The plaintiff in C.S. No.223 of 2021 and the Society which is running the school have approbated and reprobated as seen from the stand taken by them prior to the filing of the suit in C.S. No.223 of 2021 and the stand taken by them in the suit C.S. No.223 of 2021. The stand taken by the plaintiff in C.S. No.223 of 2021 is diametrically opposite to the stand taken by her in C.S. No.198 of 2016.
85. The third defendant M/s.Chettinad Logistics Private Limited in C.S. No.198 of 2016 who claims to be a tenant under the plaintiff Trust in 96/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 C.S. No.198 of 2016 under a lease deed dated 28.03.2015 had filed a suit before the City Civil Court in O.S. No.201 of 2016 against the Trust Kumararani Tmt. Meena Muthiah as well as the Society seeking for an injunction restraining them from interferring with its peaceful possession and enjoyment of the suit “C” schedule property.
86. By order dated 11.04.2016 passed by the learned V Assistant Judge, City Civil Court in I.A. No.436 of 2016 in O.S. No.201 of 2016 interim injunction was granted in favour of Chettinad Logistics which was challenged by the Society represented by Secretary Kumararani Tmt. Meena Muthiah in C.M.A. No.68 of 2016 and the learned V Additional Judge, City Civil Court at Chennai has also confirmed the order dated 11.04.2016 passed in I.A. No.436 of 2016 in O.S. No.201 of 2016 by the learned VI Assistant Judge, City Civil Court, Chennai by dismising the appeal. A similar stand that was taken in C.S. No.198 of 2016 pending on the file of this Court was also taken by the Society in that suit also and despite the same, the contention of the Society was rejected in the interlocutory application viz., I.A. No.436 of 2016 in O.S. No.201 of 2016 97/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 which was confirmed by the Lower Appellate Court by its order dated 30.07.2019 referred to supra.
87. Even before this Court, Kumararani Tmt. Meena Muthiah as well as the Society have chosen to seek for a similar relief for injunction in both the suits in C.S. No.198 of 2016 as well as in C.S. No.223 of 2021. In C.S. No.198 of 2016, O.A. No.334 of 2021 has been filed and in C.S. No.223 of 2021 O.A. No.412 of 2021 has been filed seeking for the very same relief of interim injunction restraining the plaintiff Trust in C.S. No.198 of 2016 and its Trustees from putting up construction in the suit schedule “C” property. Whether it amounts to forum shopping or not as contended by the learned counsels disputing the lease dated 29.10.2015 is a matter of trial and therefore, there is no necessity for this Court to adjudicate the said legal issue in these interlocutory applications. However from the conduct of the plaintiff in C.S. No.223 of 2021 as well as the Society which is running the school, they do not deserve any equitable relief in the interlocutory application stage as from the evidence available on record, they have not made out a prima facie case. 98/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021
88. Balance of convenience is a next test which has to be satisfied. This Court will have to see in whose favour balance of convenience is. Comparative hardship between the parties have to be examined by this Court.
89. In the case on hand, the plaintiff in CS.No.223 of 2021 and the sixth defendant society in the said suit, which is running the school is admittedly in possession of the suit B schedule property measuring about 86 grounds. These interlocutory applications pertain only to the suit C schedule property measuring 41.63 grounds. The plaintiff in CS.No.223 of 2021 claims partition of 5/32 share in the suit A schedule property measuring 127 grounds approximately and assuming that if the same is allowed by this Court and a preliminary decree as prayed for is passed, the extent will be only approximately 20 grounds which is much less the extent of the suit B schedule property which measures 86 grounds which is currently under the possession of the plaintiff in CS.No.223 of 2021 and the Society which is running the school.
99/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021
90. But on the other hand, the plaintiff Trust in CS.No.198 of 2016 has already got approval from the planning authorities for construction of a multistory building complex over the suit C schedule property and proof has also been produced before this Court in the form of a receipt issued by the Chennai Metropolitan Development Authority to show that a sum of Rs.35,91,90,000/- has been paid towards prescribed fees for getting building plan sanction from the Chennai Metropolitan Development Authority by the plaintiff Trust in CS.No.198 of 2016. It is also contended by the plaintiff Trust in CS.No.198 of 2016 that in all put together a sum in excess of Rs.40,00,00,000/- (Rupees forty crores only) has been spent for getting approval from the Chennai Metropolitan Development Authority.
91. The lease deed dated 28.03.2011 has also been filed which discloses that the suit C schedule property was let out by the plaintiff Trust in CS.No.198 of 2016 to M/s. Chettinad Logistics Private Limited, the fifth defendant in CS.No.223 of 2021 and the third defendant in CS.No.198 of 2016 and the said lease is also alleged to have been 100/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 extended, for which also documents have been filed. Though the veracity of the said documents have to be tested and the same can be tested only after trial and not in the stage of these interlocutory applications, that too, when the rent alleged to have been paid by M/s.Chettinad Logistics Private Limited to the plaintiff Trust in CS.No.198 of 2016 is Rs.2,00,000/- per month, whereas the amount paid by the School which claims to be in occupation of the entire suit A schedule property measuring 127 grounds is only Rs.12,000/- per month between the period 2009 and 2010. There are several debatable issues involved which can be decided only after trial and as far as balance of convenience after giving due consideration to the comparative hardship between the parties is concerned, this Court is of the considered view that in so far as the development of the suit C schedule property is concerned, it is with the plaintiff Trust in CS.No.198 of 2016.
92. The school run by the Society and the plaintiff in CS.No.223 of 2021 is also adequately protected insofar as their right to retain possession of the suit B schedule property is concerned, till disposal of the suit, by the common order of Division Bench of this Court dated 01.10.2020 passed in 101/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 OSA.Nos.194, 196 & 165 of 2020. The determination of the plaintiff's right to claim partition in CS.No.223 of 2021 is also not lost, if the construction is allowed to take place in the suit C schedule property. The plaintiff and the sixth defendant Society in CS.No.223 of 2021 which is running the school is in possession of the suit B schedule property which is more than 50% of the total extent of land which is morefully described in the suit A schedule property.
93. When the plaintiff and the sixth defendant Society in CS.No.223 of 2021 have pleaded equity and availed benefit from the Division Bench of this Court in its order dated 01.10.2020 by allowing them to continue running the school and not to disturb their possession in the suit B Schedule property, the plaintiff Trust in CS.No.198 of 2016 which is admittedly having 50% share in the suit A schedule property even according to the plaintiff in CS.No.223 of 2021 and the sixth defendant Society, the balance of convenience is only in favour of the plaintiff Trust in CS.No.198 of 2016 to put up construction in the suit C schedule property pending disposal of the suit. Being a public Trust, it has to 102/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 generate income for the purpose of achieving the noble objects of the Trust. The suit C schedule property is a vacant land. Though the public trust in CS.No.198 of 2016 states that it is getting a monthly rent of Rs.2,00,000/- from M/s.Chettinad Logistics Private Limited, the “PARTIES AFFIRMING THE LEASE dated 29.10.2015” deny the same but at the same time they admit that the suit C schedule property is a vacant land.
94. The lease Deed dated 29.10.2015 executed in favour of the sixth defendant Society is for the entire suit A schedule property is disputed by the plaintiff Trust in CS.No.198 of 2016 and the other parties who are disputing the lease dated 29.10.2015. As according to them, without authority and by undue influence of the plaintiff in CS.No.223 of 2021 and Mr.A.C.Muthiah, the said lease deed is alleged to have been executed.
95. Before this Court, the “PARTIES DISPUTING THE LEASE dated 29.10.2015” have produced minutes recorded by the Board of Trustees of the plaintiff Trust in CS.No.198 of 2016 to show that every 103/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 decision made by the Trust, a resolution was duly passed by the Board of Trustees. But, for executing the lease deed dated 29.10.2015 in favour of the sixth defendant society in CS.No.223 of 2021, no resolution has been produced to enable Dr.M.A.M.Ramasamy to execute the lease dated 29.10.2015 in favour of the sixth defendant society in CS.No.223 of 2021 on behalf of the Trust.
96. Whether the lease deed dated 29.10.2015 has been validly executed or not is a matter which can be decided only after trial. But as observed earlier, presently, the balance of convenience is only in favour of the plaintiff Trust in CS.No.198 of 2016 for constructing the multistorey building complex in the suit C schedule property.
97. The comparative mischief, hardship and inconvenience is heavier on the side of the plaintiff Trust in CS.No.198 of 2016 when compared to the plaintiff in CS.No.223 of 2021and the sixth defendant Society in the said suit, insofar as the development of the suit C schedule property is concerned. Having spent substantial sums of money for 104/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 obtaining the building plan approval for construction of the Multistorey building complex over the suit C schedule property and having right as an absolute owner, admittedly over 50% of the suit A schedule property even according to the plaintiff in CS.No.223 of 2021 and the society which is running the school, the balance of convenience is only in favour of the plaintiff Trust in CS.No.198 of 2016 and not on the side of the plaintiff in CS.No.223 of 2021 and the sixth defendant Society in the said suit. Accordingly, inconvenience caused to the “PARTIES DISPUTING THE LEASE dated 29.10.2015” is far greater than to the “PARTIES AFFIRMING THE LEASE dated 29.10.2015”, if development is not allowed to take place in the suit C schedule property.
98. The third test to be satisfied is irreparable injury. The plaintiff in CS.No.223 of 2021 and the sixth defendant Society in the said suit are admittedly in the possession of the suit B schedule property measuring 86 grounds, out of the larger extent of 127 grounds which is the suit A schedule property. The plaintiff in CS.No.223 of 2021 seeks for partition as according to her, she is entitled for 5/32 share in the suit A schedule 105/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 property and if 5/32 share is calculated it will be much less than 86 grounds which is under her occupation now, where the school is being run by the sixth defendant Society. Therefore, irreparable injury will never be caused to the plaintiff in CS.No.223 of 2021 or the sixth defendant Society in the said suit which is running the school, even if interim injunction is not granted as prayed for in these interlocutory applications. Whereas, when it is an admitted case that the plaintiff Trust in CS.No.198 of 2016 is having 50% share in the suit A schedule property which works out to 63.5 grounds approximately, if the injunction is granted for the suit C schedule property in favour of the plaintiff in CS.No.223 of 2021 and the sixth defendant Society, irreparable injury will be caused only to the plaintiff Trust in CS.No.198 of 2016.
99. The plaintiff in CS.No.223 of 2021 as well as the sixth defendant society have therefore not satisfied the Triple test for grant of temporary injunction as prayed for in O.A.No.334 of 2021 in CS.No.198 of 2016 & O.A.No.412 of 2021 in CS.No.223 of 2021.
106/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021
100. “PARTIES DISPUTING THE LEASE dated 29.10.2015” have also raised several legal issues in support of their contentions that the plaintiff in CS.No.223 of 2021 and the sixth defendant Society are not entitled for interim injunction as prayed for in O.A.No.334 of 2021 in CS.No.198 of 2016 and 412 of 2021 in CS.No.223 of 2021. The issues raised by them are as follows:
(a) The Doctrine of estoppel gets attracted as the plaintiff in CS.No.223 of 2021 and the sixth defendant in the said suit have recognised the plaintiff Trust in CS.No.198 of 2016 as the absolute owner of the suit A schedule property eversince the Deed of Declaration of Trust dated 28.03.1970. Therefore, they are now estopped from taking a contradictory stand in the suit CS.No.223 of 2021 where the plaintiff therein has sought for partition.
(b) The plaintiff in CS.No.223 of 2021 and the sixth defendant cannot approbate or reprobate to suit their convenience having taken a consistent stand all through for the past more than 50 years from the date of execution of Deed of Declaration of Trust dated 28.03.1970 that they are only a lessee. They cannot now take a contradictory stand by seeking 107/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 partition of the suit A schedule property in favour of the plaintiff in CS.No.223 of 2021.
(c) Without authority, Dr.M.A.M.Ramasamy has executed the lease deed dated 29.10.2015 as no board resolution was passed by the Trustees authorising Dr.M.A.M.Ramasamy to execute the lease deed in favour of the sixth defendant society.
(d) The Agreement of Gift Deed dated 09.03.1969 executed by Rajah Sir M.A.Muthiah Chettiar and Kumararajah M.A.Muthiah Chettiar in favour of the first defendant Trust in CS.No.223 of 2021, though being an unregistered document does not require registration as the gift in favour of the public charitable trust which is not a living person coming within the purview of Section 5 of the Transfer of property Act and does not require registration.
101. The principle of estoppel is dealt with in Section 115 of the Indian Evidence Act. As seen from section 115 of the Indian Evidence Act, the necessary elements required for the purpose of estoppel are as follows:
108/124
https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021
(a) One party by his words or actions makes a representation
(b) The other party believing in his words and acts on that
(c) Or alters his position.
102.Section 115 of the Indian Evidence Act reads as follows:
“115. Estoppel. —When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing. Illustration A intentionally and falsely leads B to believe that certain land belongs to A, and thereby induces B to buy and pay for it. The land afterwards becomes the property of A, and A seeks to set aside the sale on the ground that, at the time of the sale, he had no title. He must not be allowed to prove his want of title.
103. In the case on hand also, by the conduct of the plaintiff in CS.No.223 of 2021 and the sixth defendant Society, it is noticed that eversince the Deed of Declaration of Trust dated 28.03.1970 when the entire A schedule property was gifted to the plaintiff Trust in CS.No.198 of 2016 and eversince the gift, the plaintiff in CS.No.223 of 2021 and the sixth defendant Society have acquiesced to the said deed of Declaration of Trust dated 28.03.1970 by not raising any objection and only after a lapse of more than 50 years, when differences arose between the family 109/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 members, a new plea has been taken as if the plaintiff in CS.No.223 of 2021 is entitled for partition by way of inheritance.
104. Prima facie, this Court is of the considered view that such a contradictory stand cannot be taken now after a lapse of more than 50 years and that too, when the said Deed of Declaration dated 28.03.1970 has not been challenged till date. The question of granting interim injunction in favour of the plaintiff in CS.No.223 of 2021 and the sixth defendant Society as prayed for in these interlocutory applications will not arise. The doctrine of estoppel may get attracted and a pleading to that effect has also been made by the plaintiff Trust in CS.No.198 of 2016.
105. The plaintiff Trust in CS.No.198 of 2016 has also acted upon the Deed of Declaration of Trust dated 28.03.1970 and all through the last 50 years has declared that they are the absolute owner of the entire suit A schedule property. This is also accepted by the plaintiff in CS.No.223 of 2021 and the sixth defendant Society in the said suit till filing of the suit CS.No.223 of 2021 where they have taken a diametrically opposite and 110/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 contradictory stand.
106. Section 116 of the Indian Evidence Act also states that during the continuance of the tenancy, the tenant of the immovable property or any person claiming through such tenancy cannot deny the fact that at the beginning of the tenancy, it was the landlord who had the title over the immovable property. Further, the Section also explains that a person who came upon an immovable property by a license cannot deny the fact that the person from whom he got the license, that is, in whose possession the immovable property was had the title at the time when he got his license.
107. Section 116 of the Indian Evidence Act reads as follows:
“116. Estoppel of tenants and of licensee of person in possession. –– No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession there of shall be permitted to deny that such person had a title to such possession at the time when such licence was given.
108. Therefore once a tenant enters into a relationship of landlord 111/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 and tenant and gets possession of the property cannot now deny the title of the landlord. In the case on hand also, the plaintiff in CS.No.223 of 2021 who is Managing the school Chettinad Vidyashram run by the sixth defendant Society and she having accepted the title of the plaintiff Trust in CS.No.198 of 2016 over the suit A schedule property cannot now take a contradictory stand which is diametrically opposite to the plea taken in the suit CS.No.198 of 2016, where she has accepted the lease deed dated 29.10.2015 which confirms that she is only a lessee and not entitled for any partition as sought for in CS.No.223 of 2021. Only in cases where tenancy has been disputed which is not so in the case on hand, the tenant can challenge the landlord's title. Therefore, prima facie this Court is of the considered view that the stand taken by the plaintiff and the sixth defendant Society in CS.No.223 of 2021 will be hit by the Doctrine of estoppel as stipulated under Section 116 of the Indian Evidence Act.
109. This Court has also taken note of the fact that the plaintiff in CS.No.198 of 2016, the sixth defendant Society in CS.No.223 of 2021 and one Mr.RM.Palaniappan, a Trustee of plaintiff Trust in CS.No.198 of 2016 112/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 were the party defendants in the suit OS.No.201 of 2016 filed by M/s.Chettinad Logistics Private Limited before the City Civil Court seeking for permanent injunction restraining the defendants therein from interfering with their peaceful possession and enjoyment of the suit C schedule property. By order dated 11.04.2016 passed in IA.No.436 of 2018 in OS.No.201 of 2016, the learned VI Assistant City Civil Judge, Chennai granted an order of interim injunction as prayed for in a hotly contested matter as seen from the said order and thereafter, an appeal was also filed by the sixth defendant Society in CS.No.223 of 2021 aggrieved by the order dated 11.04.2016 passed in I.A.No.436 of 2018 in OS.No.201 of 2016 which was dismissed by the lower appellate court on 30.07.2019 in CMA.No.68 of 2015 and the lower appellate court confirmed the order of the trial court dated 11.04.2016 passed in I.A.N.436 of 2018 in O.S.No.201 of 2016.
110. Even before the City Civil Court at Chennai, the plea of partition was not taken and the plaintiff in CS.No.223 of 2021 and the sixth defendant Society, have accepted the lease dated 29.10.2015 and 113/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 have recognised the ownership of the suit A schedule property by the plaintiff Trust in CS.No.198 of 2016. Therefore, on a prima facie consideration, this Court is of the considered view that the plaintiff in CS.No.223 of 2021 and the sixth defendant Society must be estopped from taking a contradictory stand in CS.No.223 of 2021.
111. The conduct of the plaintiff in CS.No.223 of 2021 as well as the sixth defendant Society is also to be taken note of. O.A.No.334 of 2021 in CS.No.198 of 2016 and O.A.No.412 of 2021 in CS.No.223 of 2021 have been filed seeking identical reliefs of temporary injunction in respect of the suit C schedule property. In the affidavit filed in support of O.A.No.334 of 2021 in CS.No.198 of 2016, there is no whisper made with regard to the claim of plaintiff in CS.No.223 of 2021 for partition and only in the fresh suit CS.No.223 of 2021, the claim of partition has been made.
112. Prior to the institution of the suit CS.No.223 of 2021, no notice has been given to the plaintiff Trust in CS.No.198 of 2016 demanding partition of the suit A schedule property. The Trust has also been created 114/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 in the name of Dr.M.A.M.Ramasamy Chettiar of Chettinad Charitable Trust, when admittedly there were differences between Dr.M.A.M.Ramasamy and his adopted son MrM.A.M.R.Muthiah. A Will has also been allegedly executed by Dr.M.A.M.Ramasamy on 18.02.2015, during the time when admittedly there were differences between him and his adopted son M.A.M.R.Muthiah. In the said will also, there is no specific bequeath of his interest in the suit A schedule property which according to the plaintiff Trust in CS.No.198 of 2016 was the absolute owner of the entire suit A schedule property. The contention of the plaintiff and the sixth defendant Society in C.S.No.223 of 2021 that in the Will, dated 18.02.2015, there is a residual clause and therefore, as per the residual clause, the share of Dr.M.A.M.Ramasamy, in the suit schedule A property has been bequeathed. The said contention is true or not cannot be decided in these interlocutory applications, but can be decided only after trial that too, when on a prima facie consideration based on the evidence placed on record, the possession of the suit C schedule property seems only to be with M/s.Chettinad Logistics Limited and ownership is with the plaintiff Trust in C.S.No.198 of 2016.
115/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021
113. A writ petition has also been filed in the year 2021 in W.P.No.18058 of 2021 questioning the grant of building plan approval in favour of the plaintiff Trust in CS.No.198 of 2016 for putting up multistorey building in the suit C schedule property. In fact as seen from the minutes of the meeting recorded on 02.08.2012, the board of Trustees of the plaintiff Trust in CS.No.198 of 2016 in which Dr.M.A.M.Ramasamy also participated, have decided to develop the suit C schedule property and therefore, it is clear that he was also interested in the development of the suit C schedule property at that point of time. But however as seen from the stand taken by the plaintiff in CS.No.223 of 2021 and the second defendant Trust in CS.No.223 of 2021 which was founded by Dr.M.A.M.Ramasamy, the building plan sanction in respect of the suit C schedule property was obtained fraudulently by Mr.M.A.M.R.Muthiah, the adopted son of Dr.M.A.M.Ramasamy. The plaintiff in CS.No.223 of 2021 also claims that Dr.M.A.M.Ramasamy disowned his adopted son, Mr.M.A.M.R.Muthiah before his death. Having participated in the board of trustees meeting and having passed a 116/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 resolution, Dr.M.A.M.Ramasamy or the plaintiff in CS.No.223 of 2021 and the sixth defendant Society in the said suit cannot now take a different stand with regard to the development of suit C schedule property. However, as regards, whether the building sanction was obtained in accordance with the statutory building rules or not is a matter for consideration in W.P.No.18058 of 2021, wherein, another learned Single Judge of this Court as submitted by the respective Counsels has reserved the same for orders. Therefore, the validity of the building sanction is not being commented upon by this Court in this order as it is the subject matter of consideration by another learned Single Judge of this Court in the aforementioned Writ Petition.
114.However, the conduct of the plaintiff in CS.No.223 of 2021 and the sixth defendant Society as seen from the aforementioned facts does not entitle them to seek any interim injunction in respect of the suit C schedule property, though there may be a lease deed dated 29.10.2015 executed and registered in their favour for the entire suit A schedule property. 117/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021
115. The doctrine of approbate and reprobate in common parlance can be understood to signify the proverb that ‘you can’t eat your cake and have it too!’. The conditions for the Doctrine of approbate and reprobate to apply in a given situation are as follows:
(a) The first condition is that the party must have elected or made his choice in clear and unequivocal terms;
(b) The second condition is that it is not necessary for the electing party to have taken a benefit from the choice he has made as such;
(c) The third condition is that the electing party's subsequent conduct must be inconsistent with his earlier election or approbation.
In essence, the doctrine is about preventing an inconsistent conduct and ensuring a just outcome.
116. In the case on hand also, the plaintiff in CS.No.223 of 2021 and the sixth defendant Society have elected to take the benefit of the lease dated 29.10.2015 under which the Society is a lessee of the suit A schedule property. The plaintiff in CS.No.223 of 2021 and the sixth defendant Society have also accepted in all their pleadings in CS.No.198 of 2016 that eversince 1986, the school Chettinad Vidyashram has been functioning and the Society is a lessee under the plaintiff Trust in 118/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 CS.No.198 of 2016. Therefore this Court is of the prima facie view that Doctrine of approbate and reprobate applies to the plaintiff in C.S.No.223 of 2021 and the sixth defendant Society as the plaintiff cannot now take a diametrically opposite stand now by claiming inheritance through partition.
117.Clause 19 of the Deed of Indenture, dated 14.03.1957, stipulates that any resolution to be passed by the plaintiff Trust in C.S.No.198 of 2016 shall be decided by majority of the Trustees present at the meeting and the decision of the majority shall be final. However, the lease deed, dated 29.10.2015 in favour of the sixth defendant Society in C.S.No.223 of 2021 does not refer to any resolution passed by the majority of the Trustees of the plaintiff Trust in C.S.No.198 of 2016. Section 48 of the Indian Trust Act, though not applicable to a public trust, also stipulates that co-trustees cannot act singly and when there are more Trustees than one, all must join in the execution of the Trust, except where the instrument of Trust otherwise provides. Therefore, on a prima facie consideration, this Court will have to necessarily accept the resolution, dated 10.08.2012 passed by the plaintiff Trust in C.S.No.198 of 2021 119/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 deciding to develop the suit C schedule property, as the said resolution has been signed by all the then Trustees of the plaintiff Trust in C.S.No.198 of 2016.
118. In the case on hand, admittedly no evidence has been placed before this Court by the plaintiff in CS.No.223 of 2021 and the sixth defendant Society to prove that the resolution was passed by the board of trustees for the purpose of executing the lease deed dated 29.10.2015 in favour of the society which is running the school. When no such evidence is produced, this Court is of the considered view that no prima facie case has been made out by the plaintiff in CS.No.223 of 2021 and the sixth defendant Society for the grant of any interim injunction in their favour in respect of the suit C schedule property. The plaintiff trust in C.S.No.198 of 2016 admits only the possession of suit B schedule property by the sixth defendant Society in C.S.No.223 of 2021 which is running the school Chettinad Vidhyasharam and manage by the plaintiff in C.S.No.223 of 2021.
120/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021
119. The relief sought for in O.A.No.334 of 2021 in CS.No.198 of 2016 and O.A.No.412 of 2021 in CS.No.223 of 2021 cannot be granted at the interlocutory stage, as evidence placed on record by the plaintiff in CS.No.223 of 2021 and the sixth defendant Society does not deserve any merit for the grant of interim injunction as prayed for in these applications.
120. Insofar as application seeking for mesne profits namely in A.No.1831 of 2016 which has been remitted back to this Court for fresh consideration, pursuant to the order passed on 01.10.2016 by the Division Bench of this Court in OSA.Nos.194, 196 & 165 of 2020 is concerned, the said relief sought for can be adjudicated by this Court only after trial as no evidence has been placed on record till date with regard to the actual loss suffered by the “PARTIES DISPUTING THE LEASE dated 29.10.2015”. Further, the learned Counsels appearing for the parties disputing the lease, dated 29.10.2015 have also not made submissions emphasising the payment of mesne profits at this interlocutory stage and they were more concerned with preventing the grant of injunction in favour of the plaintiff in C.S.No.223 of 2021 and sixth defendant Society which would be 121/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 detrimental to the interest of plaintiff Trust in C.S.No.198 of 2016. Therefore, A.No.1831 of 2016 has to be dismissed as there is lack of evidence in support of the claim for mesne profits produced by the PARTIES DISPUTING THE LEASE, dated 29.10.2015. The payment of mesne profits can be adjudicated only after trial and not at this stage that too when there is no concrete evidence for payment of mesne profits produced by the parties PARTIES DISPUTING THE LEASE, dated 29.10.2015.
121.For the foregoing reasons, this Court does not find any merit in any of these interlocutory applications. Accordingly, all the three applications, namely, O.A.No.334 of 2021 in C.S.No.198 of 2016, O.A. No.412 of 2021 in C.S.No.223 of 2021 and A.No.1831 of 2016 in C.S.No.198 of 2016 are dismissed. No costs.
122. The observations made by this Court is only for the purpose of deciding these interlocutory applications. It is made clear that the observations made by this Court in this common order will not have any 122/124 https://www.mhc.tn.gov.in/judis C.S.Nos.198 of 2016 and 223 of 2021 bearing in the adjudication of the main suits, namely, C.S.No.198 of 2016 and C.S.No.223 of 2021 as the views expressed by this Court can be overturned if the “PARTIES AFFIRMING THE LEASE”, dated 29.10.2015 are able to prove their contentions after trial.
Index :Yes / No 09.02.2022
Internet :Yes
123/124
https://www.mhc.tn.gov.in/judis
C.S.Nos.198 of 2016 and 223 of 2021
ABDUL QUDDHOSE, J.
Common order made in
A.No.1831 of 2016 and O.A.No.334 of 2021
in
C.S.No.198 of 2016
and
O.A.No.412 of 2021
in
C.S.No.223 of 2021
09.02.2022
124/124
https://www.mhc.tn.gov.in/judis