Madras High Court
Thirugnanasambandam ... 1St vs A.Gopalakrishnan (Died) ... 1St on 22 August, 2008
Author: A.C.Arumugaperumal Adityan
Bench: A.C.Arumugaperumal Adityan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.08.2008 CORAM: THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN A.S.No.737 of 2006 and M.P.No.1 of 2008 1.Thirugnanasambandam ... 1st Appellant / D1 2.V.Narayanan ... 2nd Appellant / D4 3.V.Dhandapani ... 3rd Appellant / D6 4.Thondaimandal Kndaikatti Velalar Marabinar, Nadabai Madam Paribalana Muzhu, Thiruvannamalai, rep by its President Mr.V.Narayanan, No.1, Teachers Nagar, Tirukazhukundram, kancheepuram Dist. ... 4th Appellant/ D7 -vs- 1.A.Gopalakrishnan (died) ... 1st respondent / 1st plaintiff 2.M.Balasubramanian ... 2nd respondent / 2nd plaintiff 3.R.Rajasekaran ... 3rd respondent / 3rd plaintiff 4.J.P.Vijayaraghavan ... 4th respondent / 2nd defendant 5.T.Arivazhagan ... 5th respondent / 3rd defendant 6.N.Kriubasekaran ... 6th respondent / 5th defendant 7.Meenakshi ... 7th respondent 8.Durai Natarajan ... 8th respondent (RR7 and 8 brought on record as LRs of the deceased R1 vide order of Court dt 29.08.2008 made in MP.6/2006) .. Respondent / Claimant Prayer:- This Appeal has been filed under Section 96 of CPC against the decree and judgment dated 29.08.2006 in O.S.No.44 of 2004 on the file of the District Judge, Tiruvannamalai. For appellants : Mr.G.Rajan, Advocate For respondents : Mr.R.Shanmugam, Advocate (for R2, R3 & R8) R1 & R4 died, For R5 & R6 no appearance. R7 exparte JUDGMENT
This appeal has been directed against the decree and judgment in O.S.No.44 of 2004 on the file of the Court of District Judge, Tiruvannamalai. The defendants in the suit are the appellant herein. The suit was filed by the plaintiffs for declaration of the title of ther family trust property and for permanent injunction restraining the defendants from in any manner interfering with the possession and enjoyment of the plaintiffs and for costs.
2.The averments in the plaint in brief relevant for the purpose of deciding this appeal are as follows:-
2(a) The plaint schedule properties are the ancestral properties of the plaintiffs. The plaintiffs are enjoying the plaint schedule properties and their predecessors in title from generation to generation for more than two centuries. There is no other title deed is available in respect of the plaint schedule properties in favour of the plaintiffs. The plaint schedule properties have been set apart as family trust by the predecessors of the plaintiffs about two centuries back. The plaintiffs' grand father Nallathambi Mudaliar is the eldest son of Muthappa Mudaliar. It has been the practice and custom in the family that the eldest male member will be incharge of the family trust and this line of succession has been followed all these years.
2(b) The object of the plaintiffs' predecessors were that the members of the plaintiffs' predecessors family and their relations who come down to Tiruvannamalai wanted a place for their stay, and hence the plaintiffs' predecessors acquired the plaint schedule property out of the own funds for their family use. Further, the plaintiffs' predecessors made a family trust of the schedule mentioned property and started to provide a flower garland daily to Lord Arunachaleswarar from the flower gardern. The plaintiffs' predecessors constructed a small portion as a building for their stay and used the remaining portion as garden. They engaged a gardener to look after the building and the garden. The family of the gardener stayed in a portion of the building and looking after the building on behalf of the plaintiffs' family.
2(c) During karthigi festival the members of the plaintiffs' family and their relations used to come and stay in the plaint schedule property. Thus the plaint schedule property is the family trust property of the plaintiffs. Nallathambi Mudaliar had three sons viz. Appavuperumal Mudaliar, Muthusamy and Ramasamy. The 1st plaintiff is the only son of Appavuperumal Mudaliar. Muthusamy has four sons viz. Balasubramanian (2nd plaintiff), Nallathambi, Sundaramurhty and Raghupathi. Ramasamy has four sons viz. Rajasekaran (3rd plaintiff) Sundravadivelu, Sathiamurthy and Rejendran. Thus the plaintiffs 1 to 3 represent their respective branches of their family.
2(d) It is only the plaintiffs who are the absolute owners of the schedule mentioned property and the schedule mentioned property is their family trust property. The plaintiffs alone have ben exercising all rights of ownership over the plaint schedule property. The relatives of the plaintiffs are permitted to come and stay in the schedule mentioned property only with the permission of the plaintiffs during Karthigai Festival. A portion of the plaint schedule property was intended to be acquired by the Government and hence the Tahsildar, Tiruvannamalai, issued a notice to the plaintiffs grand father Nallathambi Mudali on 03.12.1915 calling upon him to putforth his objections for the said acquisition by 07.12.1914. The said communication is numbered as R.O.C.No.4653 and the original of the said communication is also filed by the plaintiffs. In pursuance of the above notice the Government had acquired a portion of the plaint schedule property and formed the municipal scavenging lane in between Chunnambukkara Street and Sannathi Street and awarded a sum of Rs.391 as compensation to Nallathambi Mudali by order dated 19.01.1915. The communication in original is also filed by the plaintiffs. This document would conclusively go to show that ownership of the plaintiffs' family to the suit property.
2(e)Previously the plaint schedule building stood registered in the Municipal registers in the name of Nallathambi Mudali, the plaintiffs grand father who died in the year 1933. Thereafter, his eldest son Appavu Perumal Mudali applied for the transfer in the Muncipal register in his name. The Municipal Commissioner after verifying the records had transferred the plaint schedule property in the name of Appavu Perumal Mudali by his order dated 15.12.1934. From then onwards the plaint schedule property continues to be in the name of the plaintiffs' predecessors in title as their private property. The Municipal tax receipts are being issued to the members of the plaintiffs family as agents of the Trust. Infact the plaintiffs family has been calling the trust property as 'Nadapai Madam' and the plaintiffs family as stated above has been looking after the family trust by the eldest male member of the family. The available municipal tax receipts are filed by the plaintiff. The service connection from the Electricity Board has been obtained in the name of the plaintiffs family, originally in the name of Appavu Perumal Mudali and subsequently in the name of Gopalakrishnan. Appavu Perumal Mudali died in the year 1980, Muthusamy died in the year 1989 and Ramasamy died in the year 1990. After the death of Appavu Perumal Mudali his son Gopalakrishnan the 1st plaintiff herein had taken over the management of the family trust and the schedule mentioned property and possession and enjoyment of the suit property. Infact the 1st plaintiff applied to the Municipality on 27.2.1988 for Transfer in the Municipal register of his name. Again the plaintiff applied on 12.9.1994 setting forth the above facts. An enquiry was conducted by the Inspector of land records and the report was submitted on 19.9.1994 to the special Deputy Director of land records and on that basis the town field register extract was transferred to the name of the plaintiff from his father. In the name of the 1st plaintiff on 7.9.1998. So also in the Municipal House Tax Register the 1st plaintiff's name has been substituted in the place of his father. The title of the plaintiffs has been recognised by the Government as well as Municipal authorities.
2(f)Infact a portion of the building has been leased out to Tiruvannamalai Muncipality under lease deeds dated 2.7.1948 and 17.08.1965 whereunder the Muncipal authorities have admitted the title of the plaintiffs family to the plaint schedule property. All these documentary evidence will clearly establish the title of the plaintiffs family to the suit property. The flower garden the situated in the plaint schedule property had perished and the plaintiffs had abandoned the flower garden about a decade back. However the plaintiffs are sending a flower garland to Arunachaleswarar Devasthanam as usual. The gardener of the plaintiffs are still residing in a portion of the plaint schedule property and the plaintiffs are in absolute possession and enjoyment of the plaint schedule property.
2(g) The 1st plaintiff is in management of the plaint schedule property on be half of the other plaintiffs as per their family custom and the other plaintiffs have given consent for such management of the family trust. The 1st plaintiff is entitled to be in management of the plaint schedule property which is a family trust of the plaintiffs. The other plaintiffs have joined the suit for complete adjudication, to establish that the plaint schedule property belong to them as their private family trust property. The defendants belong to the plaintiffs' community but they have no rights over the plaint schedule property and they are not the descendants of the plaintiffs ancestors. Except the fact that the defendants belong to the plaintiffs' community, they have no manner of right title or interest over the plaint schedule property. But the defendants are making unfounded claim over the plaint schedule property as if it belong to Kondaikatti Thondaimandala Saiva Vellar Community. The plaintiffs submit that the said Kondakatti Saiva Vellalar Community has no manner to right, title or interest over the plaint schedule property. The defendants have made public notices disputing the plaintiffs' ownership and claiming title to the suit property. The plaintiffs alone are the trustees of the family trust which own the plaint schedule property and the defendants are claiming rival trusteeship for the plaint schedule property by claiming the property as belonging to Kondaikatti Thondaimandala Saiva Vellalar Community. Hence, the suit.
3.The defendants 1, 2 and 5 have adopted the written statement filed by the 4th defendant which reads as follows:-
3(a)The plaintiffs are not the representatives of the Kondaikatti Thondaimandala Saivavellar Community. There is no such Community at all. The real name of the Community is Thondaimandala Kondai Katti Vallallar Nadapaiyee Madam Community. The suit as filed is not maintainable since the plaintiffs have not filed the suit in the representative capacity of the said Community. The Court fee paid under the plaint is not correct. The Court fees valued under Section 28 of the Court Fees Act is not correct. The suit property is not a trust property. It is only a Community Property belonging to a particular Community. The plaintiffs are not the trustees of the property. There is no private trust insofar as the suit property is concerned.
3(b) The defendants are not claiming their right and title as trustees. The suit property is worth more than Rs.1 crore on the date of filing of the suit. The suit property is intentionally under valued. There is no dispute between the parties as trustees or be trustees as mentioned above. So the Court Fee paid under Section 28 of the Court Fees Act is not correct. The suit property is not the ancestral property of the plaintiffs. There is no custom or usage or practice as mentioned in the plaint. Muthappa Mudaliar or his heirs either the eldest son or the daughter of anybody else did not enjoy the suit property as a trust property. They are community men. They have had every right to enjoy the property as a community man like the defendants and others. They did not or do not have any kind of special stature or status. The said Nadapayee Madam was constructed by the community men and women for the above said community and for the enjoyment of the community and for the occupation of the community people. It was constructed two centuries ago. It is being enjoyed and occupied by the community people since two centuries. Even today the Madam belongs only to the community and to none else in their individual capacity.
3(c)The predecessors of the plaintiffs have not acquired the property from out of their fund for the family use. In respect of the plaint schedule property no family trust was created. Flower garlands are supplied to the local temple. But this floral worship was made and is made even today by the community people and not by any individual in their individual capacity or by any individual trust. Likewise it is false to state that the plaintiff and their forefathers have been exercising all rights of ownership over the suit property. The community people without any permission or licence can come and stay in the Madam and go out. They did not and do not get any permission from anybody to stay therein. Further, all the community people can come and stay there not only during the Karthigai Festival but also throughout the year. The community people not only come for religious purpose, but they come for commercial purpose, site seeing, for getting treatment and like. The Vallalar Community alone was and is in management of the property. The community has larger number of men/women and children residing in about 40 villages through out Tamil Nadu, Pondicherry, Karnataka and Andharapradash states. They come and stay in the madam and carry on the purpose of their coming even today and since two centuries. Most of them cook therein and sojourn therein. There are several rooms in the madam itself for these purposes.
3(d)There is an ancient and powerful Vinayagar Idol in that madam, which was installed at least one hundred years ago and is being worshiped not only by this particular community but also by the Hindu Community at large. The big well within the madam was constructed by the Community people. It has several steps with several inscriptions chiselled over the steps showing the history and heritage of the madam. These inscriptions were made a century ago.
3(e)Even on 25.06.1904 a conference of the community people was held in Angampakkam Village, Kancheepuram Taluk. An employee for the madam was appointed in that conference. For the sake of convenience the community elected some Nattars known as Nattamaitharar, for the management of the madam for and on behalf of the community. They collected subscriptions, contributions and gifts from the community and other peoples and were managing the madam in Tiruvannamalai. For every auspicious functions in the community a contribution was received by the respective leaders of the community in the respective villages. For the Nattars a seal under name Vitchur Nattar was given. Each one of the Nattar was also given a Bronze plate mentioning the name "Nadapayee Madam Dharmam" with a seal. These Dharmathigaries collected the funds and regularly submutted to the managers concerned. A State conference was conducted on 27.12.1912 in the said Angampakkam village. It was decided therein that a register of the Community people for each villages was to be prepared and maintained.
3(f)Another conference was held for three days on 3, 4 and 5 of August 1918 in Tiruvanaikoil Village. In this conference village Community president for 31 villagers had been nominated. Further they have sanctioned nearly Rs.5000/- for the repair of the madam and the well and for the construction of a platform in the suit madam. In the conference held on 3.6.1923 in Sivathandi village, in which the accounts of the managers of the madam were scrutinized, necessary managers had also been appointed. Another conference was held on 29.12.1932 in Pallur village. Several resolutions had been passed in all these conference. Likewise another conference was held on 25.03.1933 in Vichur Village. All the minutes of these conference were presented and approved by the community people. They were all printed immediately and distributed to the community people. Several family heads partook in these conference. These near century old documents will prove the heredity and the continuity of the ownership, possession, enjoyment and management of the madam.
3(g)On 30.09.1934 the village presidents met held in Kanchipuram. Likewise another conference was conducted on 12.10.1934 at Vadacheri Village. To discuss about Annamalaiyar Dharmam, a meeting was held in porpanthal village, on 08.12.1929. The conference held in Ukkal village on 20.01.1934 touched upon the 'madam' and the charity purposes. Further another main piece of documentary evidence is a post card dated 06.11.1939 written by Appavu Perumal Mudaliar of Vadacherri nattar to Mr.Gangathara Mudaliar of Vichur Nattar. These documents amongst others will categorically prove the character and management of the suit property in question. They will clearly prove that no individual or no individual family is the owner of the trustee of the madam.
3(h)Several persons were in management of the madam for and on behalf of the community. Several communications from various officer would have been received by them and also sent to by them. Any action or reaction by these managers had been done only for and on behalf of the madam and not in their individual behalf. Muthappa Mudaliar, Nallathambi Mudaliar and others were managing the property, but they had been managing the property only on behalf of the community. In that way Nallathambi Mudaliar also was managing the same for the community. Even today the property is known as Nadapaiyee Madam and the manager of the said madam is paying all the taxes and making other expenditure. So their names might have been incorporated in the various registers. But that could not mean that those individuals were the owners of the madam. Some entries in the Municipal records will not confer any title to the plaintiffs as the trustees of the suit property. No enquiry was conducted either on 12.09.1994, or 19.09.1994 by any officials to the knowledge of the community people. There is no reason whatsoever to transfer the name of the plaintiff in the Municipal records on 07.09.1998. No enquiry was conducted. Such transfers made as mentioned in the plaint are all against law and do not bind the community people. They are not valid whatsoever.
3(i)The gardener is not the representative of the community. He is not the manager of the community. The six defendants mentioned in the suit fight for the right of the community people, even though they are not the representatives of the community people. Their only aim is that some individuals should not form a group to swallow the property belonging to a community people who are living in about 40 villages. These defendants have every right to fight for a good cause. They have got every title, right and interest over the suit property. Their claim to protect the property is well founded. The community alone has all the title, right and power to protect the management of the madam. A Society has been registered on 14.06.1999 by name 'Thondaimandala Kondaikatty Vellalar Marabiner Nadabayee Madam Paribalana Kuzhu, Tiruvannamalai'. This society with Serial No.138/99 has been registered under the societies Registration Act as well. This alone is the representative of the community people. The plaintiffs have no cause of action to file the suit. The defendants have every right to be in enjoyment and occupation of the suit property like others. There is no notice issued to the defendants prior to the filing of the suit. Hence, the suit is liable to be dismissed with costs.
4.The defendants 1, 2 , 4 & 5 have adopted the written statement filed by 7th defendant as follows:-
4(a)Thondai Mandalam Kondai Kattai Vellalar Marabinar Nadabai Madam Paribalana Kuzhu, Tiruvannamalai, represented by its president is a Registered Society duly, validly and legally registered under the Societies Registration Act also. It is functioning and existing as on date. This madam is thus newly added as the 7th defendant in this suit. This defendant (D7) adopts the written statement filed by the 4th defendant and the counter filed in I.A.No.80 of 1999. There is a variance in the description of the madam in the original plaint and in the amended plaint. Kondaikattai Thondai Mandala Saiva Vellalar Community as mentioned in the original plaint is wrong, the description given in the amended plaint alone is correct. The defendants 1 to 6 do not belong to one group. As admitted to in the plaint, Nadabai Madam belongs to that community viz., Kondai Kattai Vallalar Marabinar. This separate sect live in and around more than 30 villages, sprawling in Chennai, Tiruvannamalai, Vellore, Cuddalore, Villupuram, Kanchipuram and Tiruvallur Districts. There are more than 2000 families having about more than 7200 individuals in that sect. This will include the plaintiffs and also the six defendants made mention of in his plaint.
4(b)The suit madam belongs to all of them. No body or no individual or family can claim any right or title over the same in their or in his separate capacity. There are so many documents from the end of the 19th century to prove this fact. It is submitted that most of the documents have been mentioned in the written statement filed by the defendants 1, 2, 4 to 6. These and other documetns will amply prove that the title of property in question vests only in the 'madam'. These documents have already been mentioned in the written statement filed by the 4th defendant. Not only that the registered document dated 2.7.1904, bearing the registeration No.1016, volume No.1, page 72 dated 10.08.1904 entered in Ambur Sub-Registrar's Office also will amply prove this fact. So, it is submitted that the plaintiffs are not the exclusive title holders, possessors, and occupiers of the said 'madam' in question. The plaintiffs are not the trustees of madam. In fact there is no trust created by anybody for the madam. The plaintiffs are having hands in glove with some busy bodies like, Mr.Viswanathan son of Manicka Mudaliar of Bhavanapalli Village, Vadacheeri post, Vaniyambadi Taluk. He is a retired teacher. He is a close relative of the plaintiffs. But strangely enough the plaintiffs intentionally and wantonly did not add him, and others as parties. Without these persons the real controvers in between the parties could not be finally solved and a workable solution could not be arrived at. So the suit is bad for non-joinder of necessary and proper parties.
4(c) The suit property is a madam. There is a Vinayagar Idol in it. It is being worshiped by the Hindus and the non-hindus alike. This defendant is a duly registered madam under various enactments as mentioned earlier. So this Civl Court has no inherent jurisdiction to try the suit. It can be tried only under the Hindu Religious and charitable and Endowment Act or under the Societies Registration Act or under both and not by this Civil Court. It is submitted that Mr.A.Gopalakrishnan son of Appavu Perumal Mudaliar of Vadacheri Village, a plaintiff mentioned in the suit, has executed a registered power of attorney in favour of Balasubramaniyan son of Muthusamy of Vadacheri village on 17.09.1996. It pertains to the sale of the suit property said to have been owned, possessed and occupied by Gopalakrishnan. This point will go to show that the intention of the plaintiffs is only to sell the property and not to protect it. Hence, the suit is not maintainable. Gopalakrishanan is not the owner, possessor or occupier of the suit 'madam'. This defendant madam (7th defendant) alone is the title holder of the property. It is formulated to protect the madam and to improve it for the benefits of the Kondai Katti Vellalar Marabinar Sect. This is a representative suit. But before filing of the suit the plaintiffs did not obtain permission to file a representative suit from this Court. The suit filed by the plaintiffs is not maintainable. The suit is liable to be dismissed.
5.On the above pleadings the learned trial Judge has framed as many as four issues for trial. Before the learned trial Judge P.W.1 to P.W.3 were examined and Ex.A.1 to Ex.A.15 were marked. On the side of the defendants D.W.1 and D.W.2 were examined and Ex.B.1 to Ex.B.30 were marked. A Commissioner was appointed to note down the physical features of the suit property. The learned Commissioner has filed his report Ex.C.1 and plan Ex.C.2. On the basis of the available evidence, the learned trial Judge had decreed the suit as prayed for, which necessitated the defendants to approach this Court by way of this appeal.
6.M.P.No.1 of 2008 was filed under Order 41 Rule 27 of CPC by the defendants. To substantiate their contentions that the suit property belong to Thondaimandala Kondaikatti Vellalar Community the defendants have produced Citta extracts for the fasli 1393, 1394, 1395, 1396, 1397, 1398, 1399, 1400, 1402, 1405, 1406, 1407, 1408 and 1409 and also Town Survey Register to show that the plaint schedule properties S.No.1801 & 1807 are in the name of Thondaimandala Kondaikatti Vellalar Marabinar Nadabai Madam, Tiruvannamalai and also the Scheme Decree in C.S.No.213 of 1931 to be received as additional documents. Out of the above said doucments, Scheme Decree is neither relating to the plaint schedule property nor relating to the defendant Madam. It relates to Kandappa Mudaliar's trust, which has nothing to do with this suit. So except Scheme Decree in C.S.No.213 of 1991, other documents mentioned above are have some bearing to the present facts of the case. Under such circumstances, this M.P.No.1 of 2008 is ordered to be allowed and the documents filed in M.P.No.1 of 288 are marked as Ex.C.3 (series) and Ex.C.4.
7.The points that arose for consideration in this appeal are as follows:-
1)Whether the suit filed by the plaintiff for the relief of declaration in respect of the plaint schedule property as the family trust property of the plaintiffs is maintainable in the absence of registration of the plaintiffs family trust?
2)Whether the suit filed without following the provisions under Order 1 Rule 8 of CPC on behalf of the Community is maintainable?
3)Whether the decree and judgment in O.S.No.44 of 2004 on the file fo the District Judge, Tiruvannamalai, is liable to be set aside for the reasons stated in the memorandum of appeal?
8.Point No.1 :- The prayer in the plaint reads that the plaintiffs have filed the suit suit for declaration of title of the plaintiffs' family to the suit mentioned properties as their private family trust property. The properties scheduled to the plaint are :
Tiruvannamalai District, & Town Gopal Pillai Koil Street, Ward No.1 Block 31.
i)T.S.No.1801 -0-6736 sq.ft (0.15 cents) terraced building Door.No.5.
ii)T.S.No.1807 -1.24772 sq.ft (1.57 cents) There is no material placed before the Trial Court to show that the plaintiffs trust is a registered one. Under the Indian Trust Act 1882 Section 5 "No trust in relation to immoveable property is valid unless declared by a non-tenstamentary instrument in writing signed by the author of the trust or the trustee and registered, or by the will of the author of the trust or of the trustee."
Even the plaintiffs would claim that the plaint schedule properties are the trust properties. But the plaintiff is bereft of any particulars regarding when the trust was created and by whom the trust was created even though they say that the trust was created for offering flower graland daily to Lord Arunachaleswarar and the building in a portion of the suit property is built for the members of the family to enable them to come and stay during Karthigai Festival in the plaint schedule property. As per Section 1 of the Indian Trusts Act 1882, Savings clause reads that if a trust is created before the Indian Trust Act 1882 came in to force viz., 1.3.1882 the provision under Second Chapter, which includes Section 4 to 10 will not be applicable. So if the plaintiffs want to take shelter under the Savings Clause of Section 1 for non-registration of the family trust mentioned in the plaint, then the burden is heavily on them to show that the alleged family trust was created even before 1882. The plaintiffs have produced Ex.A.1 to Ex.A.3. Even in Ex.A.1 to Ex.A.3 notices issued by the Tahsildar regarding the acquisition of the land from the predecessors of the plaintiffs there is no mention about any family trust ie., there is no mention as to the fact that the land acquired by the government belongs to the family trust of the plaintiffs. There is absolutely no material placed before the learned Trial Judge to show that the family trust was in existence even before the Indian Trust Act, 1882 came into force. Under such circumstances, the suit field by the plaintiffs for the relief that the plaint schedule properties belong to the family trust of the plaintiffs in the absence of registration of the trust cannot be maintainable. Point No.1 is answered accordingly.
9.Point No.2 :- It is the case of the plaintiffs that the plaint schedule property originally belong to Nallathambi Mudaliar, whose sons are Appavu Mudaliar, Muthusmi and Ramsami and that the first plaintiff Gopalakrishnan is the son of Appavu Mudaliar and 2nd plaintiff Balasubramaniam is one of the four son of Muthusami and 3rd plaintiff Rajasekaran is one of the four sons of Ramasami and that the plaint schedule property is being enjoyed by the plaintiffs as the family trust property for the past two centuries. The important document filed on the side of the defendants is Ex.B.19 partition deed entered into between the members of the family of the plaintiffs dated 17.11.1932. The partition took place between Nallathambi Mudaliar, grand-father of the plaintiffs and the father of the 1st plaintiff viz. Appavu Mudaliar and miner sons Muthusamy S/o.Nallathambi Mudaliar, minor son Ramasami S/o.Nallathambi Mudaliar. If the plaint schedule properties are the family properties of the plaintiffs then the said parties would have find a place in the family partition, which took place under Ex.B.19. A provision has been made for maintainance of the wife of Nallathambi Mudaliar under Ex.B.19. But Ex.B.19 is silent even with regard to creation of any family trust in respect of the plaint schedule properties. If the plaintiffs' family would have dealt with the plaint schedule properties as their family trust properties or family properties, certainly the plaint schedule properties would have been included or referred to in Ex.B.19-partition deed. But Ex.B.19 is silent in respect of the plaint schedule properties. So the contentions of the learned cousnel appearing for the plaintiffs that the plaint schedule properties belong to the family of the plaintiffs cannot hold any water.
9(a)The learned counsel for the plaintiffs / respondents mainly focused the attention of this Court to Ex.A.1 to Ex.A.3 notices issued in a land acquisition proceedings by the Tahsildar to Nallathambi Mudaliar. The learned counsel for the respondents / plaintiffs vehemently contended that Ex.A.1 to Ex.A.3 relates to a portion of the property acquired by the Government for providing lane for constructing a public toilet. Even though there is no Survey Number or boundaries mentioned in any of the above said Ex.A.1 to Ex.A.3, there is a mention about the location of the property acquired by the Government for the above said properties. The location of the property acquired is stated under Ex.A.1 that situated in between Chunnambukkara Street and Sannathi Street. When this Court put a question to the learned counsel Mr.R.Shanmugam for the plaintiffs / respondents, he would contend that in those days the Survey and Boudaaries Act was not prevalent and the properties were not given any survey number etc. But today (22.08.2008) the learned counsel has produced a Municipal plan showing that land acquisition around the plaint schedule properties. But a perusal of the said plan will go to show that the land acquired is at S.No.1859, 1809, & 1818 only. If any property was acquired by the Government from the plaint schedule properties then the said municipal plan produced today on the side of the plaintiff would indicate that some properties in S.No.1801 & 1807 which are the plaint schedule properties, have also been acquired. But absolutely there is no indication in the said plan as to the acquisition of any portion of the suit properties in S.No.1801 & 1807 by the government for the purpose of putting up a lane. The said plan is marked as Ex.C.5.
9(b)Per contra the evidence let in by the defendants to show that the suit properties are being treated as Thondaimandala Kondaikatti Vellar Community are Ex.B.24 & Ex.B.25. Ex.B.24 is the orders of the Tahsildar in No.G-1/2700/2005 under which the patta for the land in T.S.No.1801 measuring 6736 sq.ft and 1 acre 57cent in T.S.No.1807, plaint schedule properties No.1 & 2 respectively, has been transferred from the name of the 1st plaintiff Gopalakrishnan to the name of the Thondaimandala Kondaikatti Vellalar Marabinar Nadabavee Madam, cancelling the earlier order of the Tahsilder under Ex.A.12 & 13. So far the plaintiffs have not taken any steps to challenge the order passed under Ex.B.24 & Ex.B.25 and the said orders have become final.
9(c)Apart from this Ex.B.9 letter (post card) dated 6.11.1939 written by the first plaintiff's father Appavu Mudaliar to one Nattu Gangathara Mudaliar, a community leader, requesting to collect money for payment of Municipal tax and also to take steps to bring the community people together. Ex.B.9 is an ancient document. The said document Ex.B.9 was exhibited through D.W.1. But there was no suggestion put to D.W.1 in respect of Ex.B.9 challenging its genuineness or credibility. If the 'madam' in plaint schedule No.1 property was possessed and enjoyed by the plaintiffs as their family trust property, then there was no necessity for the 1st plaintiff's father to write Ex.B.9 letter to the community leader, who is in no way connected with the alleged plaintiffs' family trust to collect money for payment of tax for the 'madam'. After Ex.B.24 & Ex.B.25, the plaintiffs on the basis of Ex.A.7 & Ex.A.8 cannot claim that the said 'Madam' belongs to the plaintiffs.
9(d)The learned counsel for the appellant would contend that the plaintiffs shall succeed or fail only on their pleadings and evidence and that they cannot pick hole on the weakness of the case of the defendants. For this proposition of law the learned counsel relied on AIR 2004 SC 4365 (Sayed Muhammed Mashur Kunhi Koya Tahngal Vs. Badagara Jamayath Palli Dharas Committee and others) wherein the relevant observation of the Honourable Apex Court runs as follows:-
"It appears that the lower Court forgot the cardinal principle in a suit for declaration of title and recovery of possession on the strength of title, the plaintiff can succeed only on establishing his title to the plaint schedule property and he cannot succeed on the weakness of the case put forward by the defendant."
The learned counsel for the appellant relying on 2007(2) CTC 553 (Govindarasami Naidu Vs. Shanmuga Nattar and another), would contend that the plaintiffs must establish / prove their case and cannot succeed his case on the weakness of the defendants' case. In the said case, a learned Judge of this Court after following the above cited case AIR 2004 SC 4365 (Sayed Muhammed Mashur Kunhi Koya Tahngal Vs. Badagara Jamayath Palli Dharas Committee and others) has observed that "The plaintiff could only succeed on the strength of its case and not on the weakness found in the case of the defendant, if any.."
9(e)The learned counsel for the appellant would also contend that the Court fee paid by the plaintiffs under Section 28 of the Court Fees Act is not correct. According to the learned counsel for the appellant since there is no material placed before the trial Judge to show that the plaintiffs are the trustees of the family trust, the Court fee paid under Section 28 of the Court Fees and Suits Valuation Act, 1955 is not correct and that the plaintiffs ought to have paid the Court fee under Section 25(b) of the said Act. The argument of the learned counsel for the appellant has got some force and since the plaintiffs have failed to show that they are the trustees of the family trust, the necessary Court fee, according to the Tamil Nadu Court Fees and Suits Valuation Act, 1955 is to be collected under Section 25(b) of the said Act after issuing cheque slip by the trial Court. The learned counsel for the appellant relying on 1996 (2) MLJ 551 (Gnana Desiga Swamigal Vs. Krsihnandaswami) would contend that the Court fee paid in the suit under Section 28 of the Court Fees and Suits Valuation Act is not correct. The relevant observation in the said judgment runs as follows:-
"A reading of Section 28 of the Madras Court-Fees and Suits Valuation Act makes it clear that it contemplates suits where the right of management is alone is dispute. For the applicability of section 28 to a suit for recovery of trust property the suit must be between trustees or rival claimants to the office of trustee or between a trustee and a person who has ceased to be a trustee. The suit contemplated under Section 28 is not a suit between rival trusts. Any ambiguity in the first part of the section is cleared up by the inclusion of suits between rival claimants to trusteeship and suits between a new trustee and an ex-trustee within the scope of the section. The latter categories can properly comprise only suits where the plaint proceeds not merely on the basis that the property belongs to the trust of which the plaintiff is the trustee but that the defendent's connection with the property is also as belonging to the same trust."
9(f)The next limb of argument advanced by the learned counsel for the appellants is that the suit as framed is not maintainable since the provision under Order 1 Rule 8 CPC was not followed by the plaintiffs, who having filed the suit for declaration of their family trust property have failed to file the same in a representative capacity. In support of this contention the learned counsel would rely on AIR 1987 MADRAS 187 (Assistant Commissioner of HR & CE, Salem, Vs. N.K.S.E. Mudaliar). The relevant observation in the said judgment at para 9 runs as follows:-
"Order 1 Rule 8, Code of Civil Procedure enables one or more persons to sue on behalf of numerous persons having the same interest with the permission of the Court. If an individual seeks to advance the claim of a group of persons, he is enabled to do so, by virtue of the provisions of Order 1 Rule 8 of CPC, but the procedure prescribed therein should be strictly followed. The benefit of the rule is available only to persons who fulfil the requirements thereof. It is well known that there is a clear legislative concern in the entire Code indicating the Court should make judicial orders only after hearing the persons likely to be affected by any decision in any cause. If a person is permitted to sue as a representative of another, or a group of person, it is a matter of far-reaching effect as it is likely to affect the interests of those who may not participate at the hearing of the suit. Such person are obviously entitled to put forth their objections to the filing of the suit and to the capacity of the representative who seeks either to be the plaintiff or defendant and even to the merits of the cause. All that will be possible only if the party sought to be represented is given an opportunity to raise objection, if any. It is only in accordance with the said salutary principle, the procedure in Order 1 Rule 8 CPC, has been prescribed. The object of the rule is to avoid unnecessary tedium and expense of litigation and to give a binding force to the decision which may be ultimately passed in the suit. A person cannot seek to advance the claims of a group of person or community without adopting the procedure under Order 1 Rule 8 CPC, if the relief is prayed for only on the basis of the rights of the community as such. It is no doubt true that Order 1 Rule 8 CPC, presupposes that each one of the numerous persons by himself has a right to sue, he cannot be permitted to sue on behalf of the others who have a right. But, the distinction has to be maintained between cases where the individual puts forward a right which he has acquired as a member of a community and cases where the right of the community is put forward in the suit. It it is the former, the individual is not debarred from maintaining the suit in his own right in respect of a wrong done to him even though the act complained of may also be injurious to some other persons having the same right. If it is the latter, the procedure under Order 1 Rule 8 CPC, has to be followed and without doing so, no relief could be granted to the individual concerned."
Even as per the genealogy of the plaintiffs family there are other sons of Muthusamy and Ramasamy, descendants of Nallathambi Mudaliar, available. But they have not been made as party as plaintiffs in the suit. Under such circumstance, the suit without following the provisions of Order 1 Rule 8 CPC is also fatal to the case of the plaintiffs. Point No.2 is answered accordingly.
10.Point No.3 :- In view of my discussion and findings in the earlier points I hold that the judgment and decree in O.S.N.44 of 2004 on the file of the District Judge, Thiruvannamalai, is liable to be set aside. Point No.3 is answered accordingly.
A.C.ARUMUGAPERUMAL ADITYAN, J.
11.In fine, the appeal is allowed and the decree and judgment in O.S.No.44 of 2004 on the file of the District Judge, Thiruvannamalai, is set aside and the suit O.S.No.44 of 2004 is hereby dismissed. But in the circumstances of the case, parties shall bear their own costs. Deficit Court Fees is to be collected by issuing cheque slip under Section 25(b) of the Tamil Nadu Court Fees and Suits Valuation Act, by the Trial Court.
22.08.2008 Exhibits marked:-
1.Ex.C.3(series) - Chitta extracts
2.Ex.C.4 - Copy of Town Survey register
3.Ex.C.5 - Copy of the Municipal plan Index:yes/No Internet:yes/No ssv To
1.The District Judge,Thiruvannamalai.
2.The Record Keepar, V.R. Section, High Court, Madras.A.S.No.737 of 2006
and M.P.No.1 of 2008