Madras High Court
Dr.V.Srinivasan vs Sri Sankara Narayanasamy Devasthanam on 22 January, 2003
S.A.No.652 of 2003
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
JUDGMENT RESERVED ON : 23.06.2022
JUDGMENT PRONOUNDED ON : 18.07.2022
CORAM:
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
S.A.No.652 of 2003
and CMP.No.6197 of 2003
Dr.V.Srinivasan ...Appellant/Appellant
/2nd Defendant
Vs
1.Sri Sankara Narayanasamy Devasthanam
Sankarankovil
Through its Executive Officer
Sankarankovil ...1st Respondent/1st Respondent
/Plaintiff
2.Ramalakshmiammal
3.Sankara Subramania Bhattar ...Respondents 2 &3
/Respondents 2 &3 /Defendants 3 &4
PRAYER : Second Appeal is filed under Section 100 of C.P.C, against
the judgment and decree dated 22.01.2003 on the file of the Subordinate
Court, Sankarankovil passed in A.S.No.1 of 2002 as confirmed in
judgment and decree of the Additional District Munsif Court,
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S.A.No.652 of 2003
Sankarankovil passed in O.S.No.189 of 1986 dated 30.10.2001.
For Appellant : Mr.S.Parthasarathy
Senior Counsel
for Mr.R.Govindaraj
For R1 : Mr.T.Arul
For Mr.R.Nandakumar
For R2 & R3 : No appearance
JUDGMENT
The second defendant is the appellant.
2.The plaintiff had filed O.S.No.189 of 1986 before the Additional District Munsif Court, Sankarankovil for the relief of declaration that the alienation made by the first defendant in favour of the second defendant is not valid and the second defendant or his legal heirs are not entitled to enjoy the suit schedule property. The suit was decreed as prayed by the trial Court. The second defendant had filed A.S.No.1 of 2002 before the Subordinate Court, Sankarankovil. The learned Subordinate Judge concurred with the findings of the trial Court and dismissed the suit. As against the concurrent findings, the present second appeal has been filed. 2/31 https://www.mhc.tn.gov.in/judis S.A.No.652 of 2003
3.The plaintiff in the suit is Sri Sankara Narayanasamy Devasthanam, represented by its Executive Officer. According to the plaintiff, the suit schedule property and other properties were gifted to the plaintiff temple as Devatayam Inam. The said fact has also been acknowledged by the Inam Commissioner under T.D.No.193. The said lands are Service Inam meant for conducting Pooja kaingkaryam in the plaintiff temple. The first defendant ancestor in title were the service holders and they are regularly condutcing pooja in the plaintiff temple. According to the plaintiff, the first defendant was granted Patta under Tamil Nadu Act 30 of 1963 under Sections 8(2)(ii) and 8(5) read with Section 21(7)(b). Since the suit lands were in possession of the first defendant as service holder, he is not entitled to alienate the said properties. Being a Service Inam land, in case if the service holders did not perform their service, the plaintiff Devasthanam being the absolute owner of the property can recover the said land.
4.The plaintiff Devasthanam had further contended that in violation of the Service Inam, the first defendant has alienated the suit schedule property in favour of the second defendant on 24.01.1975. The 3/31 https://www.mhc.tn.gov.in/judis S.A.No.652 of 2003 first defendant has no right whatsoever to alienate the Service Inam lands in favour of the second defendant. The alienation will not be binding upon the plaintiff Devasthanam. The plaintiff Devasthanam had issued a notice to the defendants on 03.04.1984. However, there was no reply from the defendants. The plaintiff Devasthanam had further contended that the first defendant has not taken any steps to discharge him from the burden of Service Inam and hence, the alienation is bad in the eye of law. That apart, having alienated the Service Inam lands, the first defendant will be disqualified from performing the services to the plaintiff temple. Hence, the present suit has been filed for a declaration that the alienation made by the first defendant in favour of the second defendant are invalid and for a permanent injunction restraining the second defendant and their legal heirs from in any way enjoying the suit schedule property.
5.The first defendant had filed a written statement contending that the suit lands are not the Devasthanam land belonging to the plaintiff temple. The first defendant had further contended that these lands are also not service inam burdened with an obligation to perform the service. According to the first defendant, it is a personal Inam and the first 4/31 https://www.mhc.tn.gov.in/judis S.A.No.652 of 2003 defendant is entitled to alienate the same. As long as the first defendant and his heirs are performing the services to the plaintiff temple, the plaintiff Devasthanam cannot question the alienation.
6.The first defendant had further contended that even as per the plaint averments, the first plaintiff is continuing the pooja kaingkaryam in the plaintiff temple and hence, the present suit for a declaration that the alienation is not valid is not maintainable.
7.The first defendant had further contended that the plea of the plaintiff temple that only a conditional Patta was granted to the first defendant is not correct. The alienation made by the first defendant in favour of the second defendant will not disqualify the first defendant or his heirs from performing the service in the plaintiff temple. The first defendant had further contended that the plaintiff has not prayed for cancellation of the sale deeds. Without such a prayer, the present suit is not maintainable.
8.The first defendant had further contended that the suit filed by the Executive Officer is not maintainable on the ground that the prior 5/31 https://www.mhc.tn.gov.in/judis S.A.No.652 of 2003 permission from the Commissioner of HR & CE has not been obtained. Hence, the present suit filed by the Executive Officer of the temple is not maintainable. Hence, he prayed for dismissal of the suit.
9.The second defendant purchaser had filed a written statement contending that it is a personal Inam and under Tamil Nadu Act 30 of 1963, Ryothwari patta has been granted in favour of the first defendant with a condition that the first defendant should perform pooja kaingkaryam in the plaintiff temple. He had further contended that the Inam is a personal Inam burdened with a condition to do services. As long as the first defendant is continuing with the service in the plaintiff temple, the plaintiff Devasthanam is not legally entitled to file such a suit. The second defendant had further contended that he is the bonafide purchaser for valuable consideration without having any notice.
10.The second defendant had further contended that the power to challenge the alienation is only with the Government which has granted Ryothwari patta and hence, the temple has no legal right to make a claim about the land that was granted as a personal Inam. The second 6/31 https://www.mhc.tn.gov.in/judis S.A.No.652 of 2003 defendant has also disputed the contention of the plaintiff that it is a Devatayam Inam Grant. According to the second defendant, he has purchased the suit schedule property in the year 1975 and the present suit has been filed only on 12.03.1986 after a delay of 11 years. Hence, the present suit is barred by the principle of acquiesce. The second defendant further contended that without seeking a prayer for recovery of possession, the present suit for declaration and permanent injunction is not maintainable. Hence, he prayed for dismissal of the suit.
11.The trial Court mainly relied upon Exhibit A4 document which is a xerox copy of Inam Fair Register. As per the said document, it has been mentioned as TD.No.193. Based upon Exhibit A4, the trial Court arrived at a finding that it is a Devatayam land directly gifted in favour of the temple. Though the defendants had contended that it is a personal Inam, no document has been produced on the side of the defendants to prove the same. The trial Court further found that the first defendant has not got myself discharged from the burden and hence, he is not entitled to alienate the same. The trial Court also relied upon a judgment of our High Court to arrive at a finding that where the lands are granted in Inam 7/31 https://www.mhc.tn.gov.in/judis S.A.No.652 of 2003 for any service of Archagar, it should not be deemed to be personally gifted to Archagar. The trial Court further relied upon Section 41 of the Hindu Religious and Charitable Endowment Act and arrived at a finding that the department is entitled to resume the Inam for any violation. Since alienation made by the first defendant in favour of the second defendant are void, the second defendant did not get any title or possession under the said document. Though the defendants have contended that the Ryothwari patta was granted to them under Act 30 of 1963, the same has not been produced by them. Hence, the trial Court has drawn adverse inference as against the plaintiff. The trial Court further held that the second defendant is not a bonafide purchaser for valuable consideration. Since the suit has been filed within a period of 12 years from the date of alienation made by the first defendant, the same is not barred by limitation.
12.The trial Court further found that since the first defendant is performing the services to the temple, the first defendant is entitled to be in possession and enjoyment of the suit schedule property. Only the second defendant who is a stranger to the property is not entitled to 8/31 https://www.mhc.tn.gov.in/judis S.A.No.652 of 2003 enjoy the property. Hence, the present suit for permanent injunction as against the second defendant, without seeking a prayer for recovery of possession is maintainable. Based upon the above said findings, the trial Court decreed the suit as prayed for.
13.Before the First Appellate Court, a certified copy of the Inam Fair Register presented by the temple and the same was marked as Exhibit B5. The First Appellate Court further held that it is only a service Inam and not a personal grant in favour of the first defendant. The First Appellate Court also relied upon Exhibit A5 additional document to arrive at a finding that the temple is the absolute owner of the suit schedule property. The First Appellate Court further held that the Ryotwari patta alleged to have been issued in favour of the defendants have not been produced and the suit is not barred by limitation. Based upon the said findings, the First Appellate Court dismissed the first appeal. As against the concurrent findings, the present second appeal has been filed.
14.The second appeal has been admitted on the following substantial questions of law:
9/31
https://www.mhc.tn.gov.in/judis S.A.No.652 of 2003 “1.Whether the Courts below is right in holding that the grant is in favour of the first respondent Devasthanam in the absence of any evidence and erred in law in proceeding on the assumption Ex.A4 is a Inam Fair Register?
2.Whether the suit for declaration that the sale deed Ex.B1 is null and void is maintainable at the instance of the first respondent especially when assuming without admitting with the Inam burdened with services?
3.Whether the Courts below is right in granting relief of mandatory injunction prohibiting the enjoyment of the property especially when the appellant is a bonafide purchaser of value without notice and he had also effected various superstructure to the knowledge of the first respondent herein? “
15.The learned Senior Counsel for the appellant had contended as follows:
(i).The present suit has been filed by the Executive Officer of Sankara Narayasamy Devasthanam. No documents whatsoever has been filed to indicate that the Executive Officer has obtained the prior permission of the Commissioner of HR & CE Department before filing the present suit. According to the learned Senior Counsel, it is only the Board Trustees who are competent to initiate legal proceedings. The 10/31 https://www.mhc.tn.gov.in/judis S.A.No.652 of 2003 learned Senior Counsel relied upon a Division Bench judgment of our High Court reported in 2003-1-LW 386 ( Sri Arthanareeswarar of Tiruchengode and others Vs. T.M.Muthuswamy Padayachi and others) to contend that the suit has been filed by the Executive Officer without any permission from the Commissioner, HR & CE Department and the same is not maintainable. He had further contended that the said plea with regard to the maintainability of the suit has been raised in Paragraph No.12 of the written statement filed by the first defendant.
(ii).The learned Senior Counsel had further contended that even as per the plaint averment, the present suit schedule property are the subject matter of a service inam and the first defendant is performing the services regularly. Such being the case, the present suit for declaration that the alienation are invalid and for a permanent injunction not to enjoy the suit schedule property by the purchaser is not maintainable. The learned Senior Counsel relied upon a judgment of this Court reported in 2017 (5) CTC 804( Ramasamy and others Vs. Tamilvel and others) and another judgment reported in (2002) 3 MLJ 296 ( M.Liaquat Ali Vs.Sri Brahadambal Temple, Thirugokarnam) to impress upon the Court that that the only option that is available to the plaintiff temple is to invoke 11/31 https://www.mhc.tn.gov.in/judis S.A.No.652 of 2003 Section 21 of the Tamil Nadu Act 30 of 1963. Hence, the present suit is not maintainable. The learned Senior Counsel further contended that under Section 2 of Tamil Nadu Act 3 of 1963, it has been held that no other enactments relating to minor inam other than Act 30 of 1963 will have operation over the minor inam. The learned Senior Counsel however referred to Section 8(5) of Tamil Nadu Act 30 of 1963 to contend that the Minor Inam Abolition Act is a comprehensive enactment. Services rendered to religious institutions are also covered under the said Act. Hence, the plaintiff temple will not have any jurisdiction to invoke Section 41 of Tamil Nadu Hindu Religious and Charitable Endowment Act. According to the learned Senior Counsel, Tamil Nadu HR & CE Act is of the year 1959 and the Tamil Nadu Minor Inam Abolition Act is of the year 1963 and hence, later enactment relating to this special category of lands namely minor inam will prevail over the provisions of Tamil Nadu Hindu Religious and Charitable Endowment Act.
(iii).The learned Senior Counsel appearing for the appellant had contended that as far as the service inam is concerned, the only option 12/31 https://www.mhc.tn.gov.in/judis S.A.No.652 of 2003 available to the plaintiff temple is to approach the prescribed officer as contemplated under Section 21 of the Tamil Nadu Act 30 of 1963.
(iv).The learned Senior Counsel had further contended that the plaintiff temple has not prayed for declaration of title. There is no prayer even for recovery of possession. However, the plaintiff has only prayed for a declaration that the alienation made by the first defendant in favour of the second defendant is invalid and the second defendant should be prohibited by a decree of a permanent injunction not to enjoy the suit schedule property. The framing of such a suit, without a prayer for declaration of title is not maintainable. The learned Senior Counsel further relied upon Section 41(h) of Specific Relief Act to contend that when equally efficacious relief can be obtained by any other usual mode of proceeding, then the provision of the Specific Relief Act cannot be invoked. The learned Senior Counsel relied upon a judgment of our High Court reported in (2021) 2 CTC Page 167 ( S.Umamaheswari and others Vs. P.Murugesan and others) to contend that the present suit for declaration that the alienation is null and void and for permanent injunction relating to the enjoyment of the property is not maintainable. 13/31
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(v).The learned Senior Counsel had further contended that the main contention of the defendants is that the grant is not a service inam, but a personal inam as a remuneration for the services offered by the first defendant in the plaintiff temple. Hence, the learned Senior Counsel had contended that it is not a service inam for which the lands were granted as remuneration. When a particular grant is a personal inam, inamdar is entitled to alienate the inam land, the plaintiff temple cannot have any objection whatsoever as long as the services are continued to be performed. Admittedly, in the present case, services are continued to be performed by the first defendant. Hence, the present suit is not maintainable.
(vi).The learned Senior Counsel had further contended that the present inam is covered under TD.No.193. With regard to the same inam, the plaintiff temple has initiated a similar suit as against one P.S.Chandrasekara Raja and seeking for similar prayer that the sale deeds executed by the said Chandrasekara Raja are not binding upon the temple and for permanent injunction restraining the purchaser from putting up any construction in the suit schedule property. That suit came by way of 14/31 https://www.mhc.tn.gov.in/judis S.A.No.652 of 2003 S.A.No.213 of 1997 and the same was decided by this Court on 25.03.2011. In paragraph No.10 of the said judgment, this Court has categorically found that it is only personal grant with a condition to perform service to the temple. In view of the judgment in the said second appeal, the plaintiff temple cannot be heard to contend again that it is only a service inam and not a personal grant.
(vii).The learned Senior Counsel had further contended that the Courts below have not properly appreciated the pleadings of the parties and the documents marked on either side and arrived at an erroneous finding that the grant is a service inam and alienation made by the first defendant in favour of the second defendant is void. Hence, he prayed for allowing the second appeal.
16.Per contra, the learned counsel for the respondents had contended as follows:
(i). The inam in dispute is the Devadayam land in favour of the temple. The learned counsel for the first respondent had relied upon Exhibit A4 a photo copy of the inam register. The certified copy of the 15/31 https://www.mhc.tn.gov.in/judis S.A.No.652 of 2003 said inam fair register was marked as Exhibit A5 as an additional document before the First Appellate Court. He had further contended that as per plaint averments, the grant is only a service inam and not a personal grant.
(ii). The learned counsel had further contended that the grant being a service inam, the inamdar will have only a right of possession subject to the condition that he has to render service to the temple. At no point of time, title will vest with inamdar but the inamthars possession is always conditional. Hence, the inamdar under a service inam will not have any right to alienate the service inam property. Hence, the prayer of the plaintiff temple that the alienation made by the first defendant in favour of the second defendant is invalid is perfectly maintainable.
(iii).He had further contended that the second defendant who is the purchaser from the service holder will not get any title over the suit schedule property. Hence, the prayer was sought for as against the second defendant that he should be prohibited from enjoying the suit schedule property.
(iv).The learned counsel for the first respondent had further contended that the temple will have to invoke Section 21 of Tamil Nadu 16/31 https://www.mhc.tn.gov.in/judis S.A.No.652 of 2003 Act 90 of 1963 when the services were not rendered by the service holder. In the present case, admittedly, the services are being continued by the service holder. The question of invocation of Section 21 of Tamil Nadu Act 30 of 1963 will not arise.
(v).The learned counsel had further contended that the present suit is not between the service holder and the temple. The main relief sought for by the temple is only as against the second respondent who is the purchaser from the service holder. The plaintiff temple has never sought to resume possession from the first defendant who is the service holder.
In such an event, the plaintiff temple has merely sought for declaration that the sale deed executed by the service holder in favour of the second defendant is invalid. In such an event, the suit should only be construed to be the suit by the temple as against the third party. Hence, the question of invoking Section 21 of the Tamil Nadu Act 30 of 1963 does not arise.
(vi).The learned counsel had further contended that the judgment of our High Court referred in S.A.No.213 of 1997 on 25.03.2011 was put to challenge before the Hon'ble Supreme Court in Civil Appeal No.2671 of 2013. The Hon'ble Supreme Court by its order dated 23.02.2022 has reversed the judgment and decree of the High Court. The Hon'ble 17/31 https://www.mhc.tn.gov.in/judis S.A.No.652 of 2003 Supreme Court has proceeded to hold that the prayer in a similar suit for a declaration that the sale deeds are null and void are perfectly valid. He had further contended that the Hon'ble Supreme Court has further granted liberty to the temple to initiate proceedings under Section 21(7) of the Tamil Nadu Act 30 of 1963.
(vii).The learned counsel had further contended that the trial Court as well as the First Appellate Court have properly appreciated the grant in favour of the appellant as a service inam and the Courts below have also arrived at a concurrent finding that the service inam holder will not be entitled to alienate the suit property. Since alienation is void, the prayer sought for by the plaintiff was granted. Hence, he prayed for dismissal of the second appeal.
17.I have given anxious consideration to the submissions made on either side.
18.Nature of Inam:
18(i). It is the specific contention of the plaintiff temple that the inam in favour of the first defendant is only a service inam. However, the defendants 1 and 2 have contended that the inam is not a service inam for which the lands were gifted as remuneration. But on the other hand it 18/31 https://www.mhc.tn.gov.in/judis S.A.No.652 of 2003 is a personal grant in favour of the first defendant with a burden/ obligation to perform services in the temple. It is the case of the plaintiff temple that the inam Commissioner has granted a document in favour of the temple in TD.No.193. As per the said document, the nature of inam is only a service inam. However, the said document has not been produced. With regard to the same, TD.No.193, this Court was had an occasion to consider the nature of inam in S.A.No.213 of 1997 by its judgment dated 25.03.2011 had held that it is only a personal inam with a condition to perform services to the temple. However, the said issue has been challenged before the Hon'ble Supreme Court by the plaintiff temple. In Civil Appeal No.2671 of 2013, the Hon'ble Supreme Court in Paragraph No.13 has held as follows:
“13.Even if we go by the admitted case of the respondent that what was granted to defendant No.1 was a personal grant coupled with an obligation to render service to the temple, the respondent is on a weak wicket. This is for the reason that in the sale deed dated 03.01.1974 executed by defendant No.1 in favour of the defendant Nos.2 to 6, the vendor is described as a person employed as a cashier in Thanjavur Bank. In other words, defendant No.1 ceased to be a full time priest and had already gone out for a bank employment. Defendant Nos.1 to 6 did not 19/31 https://www.mhc.tn.gov.in/judis S.A.No.652 of 2003 contest the suit. Therefore, there was no evidence on record to show that defendant No.1 or his sons were rendering services. The respondent herein was only a purchaser from the persons who purchased the property from the grantee. Therefore, neither the respondent nor his vendors can have any knowledge as to whether services are being rendered by defendant No.1 or his progenies” .
19.The said observation of the Hon'ble Supreme Court will clearly disclose that the Hon'ble Supreme Court has proceeded upon the admitted case of the inam holder that he was not rendering any service to the temple as he is employed as a cashier in a Bank.
20.The Hon'ble Supreme Court has found that the temple is entitled to proceed under Section 21 of Tamil Nadu Act 30 of 1963. The Hon'ble Supreme Court has further found that the proceedings under Act 30 of 1963 would not help the temple in getting sale deeds invalidated and hence, the present suit for declaration that the sale deed executed by inam holder in favour of the third parties are valid. The Hon'ble Supreme Court has granted liberty to the temple to initiate proceedings under Section 21(7) of Tamil Nadu Act 30 of 1963. With regard to the same, 20/31 https://www.mhc.tn.gov.in/judis S.A.No.652 of 2003 TD.No.193 , the Hon'ble Supreme Court has taken a view that the grant in favour of the beneficiaries is subject to the power of the temple to resume possession under Section 21(7) of Tamil Nadu Act 30 of 1963. Hence, this Court is bound by the said decision of the Hon'ble Supreme Court. The plaintiff in the present case has pleaded that the grant is a service inam and the defendant has contended that it is a personal grant. As regards the same TD.No.193, the Hon'ble Supreme Court has held that the said inam is the subject to the power of the temple to resume possession under Section 21(7) of the Tamil Nadu Act 30 of 1963. Section 21 of Act 30 of 1963 deals exclusively with Service Inam. Hence, we can safely arrive at a finding that the suit inam is only a service inam.
21.Applicability of Section 41 of Hindu Religious and Charitable Endowment Act:
21(i). Section 8(5) of Tamil Nadu Act 30 of 1963 is extracted as follows:
“ In the case of a minor inam held immediately before the appointed day by an individual on condition of rendering service to a religious, educational or charitable institution, the grant of ryotwari patta under Sub-Section (1) or (2) shall be subject to the provisions of Section 21”.21/31
https://www.mhc.tn.gov.in/judis S.A.No.652 of 2003 22(ii). Tamil Nadu Act 30 of 1963 has come into force on 05.02.1964. While Section 41 of Tamil Nadu Hindu Religious & Charitable Endowment Act has come into force on 02.12.1959. The learned Senior Counsel appearing for the appellant had contended that Tamil Nadu Act 30 of 1963 is a special enactment and Section 8(5) specifically states that it covers the inam granted to an individual for rendering service to religious institution but will also be subject to the provisions of Section 21. I am in agreement with the said contention and the possession can be taken by the temple only by invoking the provisions of Section 21(7) of Tamil Nadu Act 30 of 1963 and Section 41 of Hindu Religious and Charitable Endowment Act cannot be invoked.
23.Objection relating to framing of suit:
23(i).The learned Senior counsel appearing for the appellants had contended that the present suit seeking for a declaration that the sale deed executed by the inam holder in favour of the second defendant is invalid and for a permanent injunction restraining the second defendant from in any way enjoying the suit schedule property is not maintainable. 22/31 https://www.mhc.tn.gov.in/judis S.A.No.652 of 2003 He had further contended that no prayer has been sought for seeking declaration of title or recovery of possession. Without seeking any prayer for substantive relief, the above said prayers are not maintainable. The learned Senior Counsel has also relied upon a judgment of our High Court reported in (2021) 2 CTC Page 167 ( S.Umamaheswari and others Vs. P.Murugesan and others) in Paragraph Nos. 27 and 28 has held as follows:
“27.A prayer for restraint on alienation can be an interlocutory prayer in a suit for partition or specific performance or a suit seeking a declaratory relief. A restraint of alienation for a limited period could be granted to avoid multiplicity of proceedings. But, in a case where the plaintiff can initiate the appropriate legal proceeding to obtain a larger relief and refuses to do so, the said plaintiff cannot be favoured with a decree for permanent injunction that too restraining the alienation. The intention of the legislature behind the provisions of the Specific Relief Act as well as the C.P.C, is to prevent multiplicity of proceedings. While Order 2 Rule 2 of C.P.C, mandates the plaintiff to sue for all the reliefs and prohibits him or her from claiming the reliefs omitted to be sought for at a later point of time. Proviso to Section 34 of the Specific Relief Act debars the plaintiff from claiming the relief of declaration alone without seeking a further relief where he or she is in a position to seek 23/31 https://www.mhc.tn.gov.in/judis S.A.No.652 of 2003 such further relief and Section 41(h) of the Specific Relief Act restrains the Court from granting an injunction when the plaintiff can sue for a larger relief.
28.The object behind these provisions, as already pointed out, is to prevent multiplicity of proceedings and also to prevent conflicting decrees in respect of the same subject matter. I am unable to fathom a position where a Civil Court grants a decree for permanent injunction restraining a owner/co-owner from alienating the property. Thereafter, a suit for partition is filed and the said co-owner, who has been injuncted by a decree for permanent injunction of a competent Court, is allotted a share in the property. Grant of such injunctions would lead to such anomalous situations. The legislature had incorporated various provisions in the C.P.C., as well as the Specific Relief Act only to prevent such anomalous situations arising out of such ill-advised suits. .....”
24. The learned counsel contended that a bare injunction suit without seeking for substantive relief will not be maintainable. However, the learned counsel appearing for the respondents had contended that the first defendant is still continuing his service to the temple and hence, he is entitled to continue possession of the suit schedule property. With the background of the above said facts, the temple can only seek the relief that the sale deed in favour of the second defendant is invalid. Hence, 24/31 https://www.mhc.tn.gov.in/judis S.A.No.652 of 2003 the prayer for permanent injunction has been sought only as against the second defendant purchaser from enjoying the suit schedule property.
Unless the suit schedule properties are resumed by invoking Section 21(7) of Tamil Nadu Act 30 of 1963, the question of seeking declaration of title and recovery of possession does not arise.
25.The Hon'ble Supreme Court in the judgment cited supra in Civil Appeal No.2671 of 2013 dated 23.02.2022 has held that the proceedings under Section 21(7) of Tamil Nadu Act 30 of 1963 will not in any way help the temple to invalidate the sale deeds. The Court has further held that when the temple has got power for resumption of lands, certainly the temple has got a right to seek declaration that the sale is null and void.
26.In view of the judgment of the Hon'ble Supreme Court, the submissions made by the learned Counsel for the appellant relating to framing of the suit is not sustainable in the eye of law.
27.Maintainability of the suit:
27(i).The first defendant in Paragraph No.12 of his written statement has taken a defence that the suit filed by the Executive Officer 25/31 https://www.mhc.tn.gov.in/judis S.A.No.652 of 2003 of the temple is not maintainable. The said defence has been raised on the ground that the suit could be filed only by the Board of trustee or if the Executive Officers wishes to file a suit, he should obtain prior permission from the Commissioner of HR & CE Department. The learned Senior Counsel had relied upon a Division Bench judgment of our High Court reported in (2003) 1 LW Page 386 ( Sri Arthanareeswarar of Tiruchengode and others Vs.T.M.Muthuswamy Padayachi and others) to contend that the Executive Officer is not the competent authority to initiate legal proceedings when he has not been assigned with the power for filing the suit.
28.I have carefully perused the Division Bench Judgment as cited supra. In Paragraph No.21 of the said judgment, the Hon'ble Division Bench has held as follows:
“21.In this case, the Executive Officer, in his chief-examination as P.W.1, has stated that for the purpose of filing the suit, he sought permission from the Commissioner and got the order under Ex.A12. On a perusal of Ex.A12 dated 24.06.1970, it is seen that instructions were issued to the Executive Officer and the Board of Trustees to obtain legal opinion to enforce the charges mentioned in the settlement deed 26/31 https://www.mhc.tn.gov.in/judis S.A.No.652 of 2003 dated 01.11.1897 executed by one Thiru.Venkatachala Gounder and his wife. A copy of these instructions was issued to the Executive Officer as well as to the Chairman, Board of Trustees. The above instructions did not authorise the Executive Officer to file a suit. As a mater of fact, the instructions were addressed to both the Executive Officer as well as to the Chairman, Board of trustees in order to obtain legal opinion in reference to the enforcement of the settlement deed. Thereafter, the Inspector, H.R.& C.E Department held an enquiry on 01.10.1971 on the petition by T.P.Ardhanari Padayachi ( the first plaintiff in the Community's suit) Ex.B.107 is the report of the Inspector dated 24.01.1972 wherein he has stated that he found on his enquiry, that from the date of the gift/settlement deed dated 01.11.1897, no such Nandavanam and its performance was conducted. It was further noted that in reference to this property, there was already an enquiry by the Commissioner on 26.05.1970 and an order dated 24.06.1970 had been passed directing the concerned to take legal opinion. From the above, it is clear that the Executive Officer is not the authority competent to initiate legal proceedings and that he had not been assigned with the power of filing a suit. It is only the Board of Trustees in existence at that time which was competent initiate the legal proceedings. The trustees are not made parties to the suit and therefore, the finding insofar as the Executive Officer's suit is concerned, that it is filed without authority has to be upheld”.
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29.Admittedly, the present suit has been filed by the Executive Officer of the temple. An objection has been raised with regard to the maintainability of the suit. Civil Appeal No.2671 of 2013 filed before the Hon'ble Apex Court arises out of O.S.No.360 of 1983 on the file of District Munsif Court, Sankarankovil. The said suit was also filed by the temple through its Executive Officer. The Hon'ble Apex Court has upheld a similar decree as against a service inam holder. Hence, this contention is not legally sustainable.
30.Bonafide Purchaser
(i).The second defendant had contended that he is a bonafide purchaser for valuable consideration.
(ii).The service inam holder has no right of alienation of the inam property. Hence, the purchaser can never be considered to be a bonafide purchaser for valuable consideration. The inam holder himself is in possession only subject to the condition of rendering service and the temple has got right of resumption of the inam land due to failure of rendering service. Hence, the service inam holder do not have any absolute title over the property. Hence, the second defendant ( purchaser) 28/31 https://www.mhc.tn.gov.in/judis S.A.No.652 of 2003 is not entitled to enjoy the said property. That apart, the enjoyment of the inam land is granted only as a remuneration for rendering any services. The second defendant who is not rendering any service to the temple shall not be entitled to enjoy the suit schedule property. Hence, the Courts below were right in granting a decree for permanent injunction as against the second defendant from enjoying the suit schedule property.
31.In view of the above said discussion, I answer the substantial question of law as follows:
(1).The Courts below were right in arriving at a finding that the inam granted in favour of the temple is only a service inam, in view of the fact that the defendants have not produced the ryotwari patta granted in their favour during the settlement proceedings.
(2).The suit for declaration that the sale deed is null and void is maintainable because the service inam holder has got only a right of permanent occupancy without any right of alienation.
(3).The second defendant is not a bonafide purchaser and hence, the decree for permanent injunction granted against him is valid in the eye of law.
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https://www.mhc.tn.gov.in/judis S.A.No.652 of 2003
32.All the substantial questions of law are answered as against the appellant. Hence, the judgment and decree of the Courts below are confirmed. The second appeal is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
18. 07.2022 Index : Yes / No Internet : Yes / No msa To
1.The Subordinate Judge Sankarankovil
2.The Additional District Munsif Sankarankovil
3.The Section Officer V.R.Section Madurai Bench of Madras High Court Madurai 30/31 https://www.mhc.tn.gov.in/judis S.A.No.652 of 2003 R.VIJAYAKUMAR,J.
msa Pre-delivery Judgment made in S.A.No.652 of 2003 and CMP.No.6197 of 2003 18.07.2022 31/31 https://www.mhc.tn.gov.in/judis