Madras High Court
Dhanasekaran (Died) vs Kremmer Sandegren Foundation on 8 July, 2021
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
S.A.No.1498 of 1999
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 08.07.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.No.1498 of 1999
and
CMP(MD)Nos.3056 & 3561 of 2021
1.Dhanasekaran (died)
2.Jayasekaran (died)
3.Kulasekaran (died)
4.Louisa Vanataya (died)
5.Etna Chandrasekaran
6.Lily Rajasekaran
7.Vijayakumar
8.Shanthi ... Defendants / Respondents / Appellants
9.T.Thirugnanam ... Impleaded 9th appellant
-Vs-
1.Kremmer Sandegren Foundation,
Pattukotai, represented by its
President and Dean M.Ayyavu
S/o. Muthusamy,
Naduvikkottai,
Pattukkottai Taluk. ... Plaintiff / Appellant / 1st Respondent
2.A.Dharmarajan
... 7th Defendant / 7th Respondent / 2nd Respondent
https://www.mhc.tn.gov.in/judis/
1/14
S.A.No.1498 of 1999
PRAYER: Second Appeal filed under Section 100 of the Civil
Procedure Code, against the judgment and decree of the leanred
Subordinate Judge, Thanjavur, dated 24.06.1998 made in A.S.No.
5 of 1996 reversing the judgment and decree dated 26.09.1990
made in O.S.No.114 of 1987 on the file of the District Munsif
Court, Pattukottai.
in SA No.1498 of 1999 : -
For Appellant : Mr.H.Lakshmi Shankar
for Mr.AN.Ramanathan
For R1 : Mr.G.Prabhu Rajadurai
For R2 : given up
in CMP(MD)No.3056 of 2021 : -
For Petitioner : Mr.S.Meenakshi Sundaram
Senior Counsel
for Mr.A.Srinivasan
For Respondents : Mr.H.Lakshmi Shankar
for Mr.A.N.Ramanathan for R1 to R8
: Mr.G.Prabhu Rajadurai for R9
in CMP(MD)No.3561 of 2021 : -
For Petitioner : Mr.S.M.A.Jinnah
For Respondents : Mr.H.Lakshmi Shankar
for Mr.A.N.Ramanathan for R1 to R8
: Mr.G.Prabhu Rajadurai for R9
https://www.mhc.tn.gov.in/judis/
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S.A.No.1498 of 1999
JUDGMENT
This second appeal arises out of O.S.No.114 of 1987 on the file of the District Munsif Court, Pattukkottai. The said suit was instituted by Kremmer Sandegren Foundation, Pattukkottai represented by its President and Dean M.Ayyavu. The suit was for declaration that the suit property belonged to the Foundation and for recovery of possession from the defendants 1 to 6.
2.The plaint averments were as under : -
The suit property was purchased by its former President Rev.Paul Sandegren vide sale deed dated 13.12.1960 from the defendants and other members of the family ; The defendants after selling the suit property for valuable consideration to the Foundation colluded with one Kasinatha Vanniar and got the property attached in O.S No.348 of 1958 on the file of the District Munsif, Pattukottai ; Rev.Paul Sandegren filed E.A No.326 of 1964 and the claim petition was allowed on 25.07.1964 ; the defendants fraudulently staked a claim on the property on the strength of a Will dated 27.07.1972 as if it was executed by Rev.Paul Sandegren ; they managed to enter the suit property and are squatting on it ; since the defendants disputed the plaintiff's title and are occupying the suit property by staking claim thereon, the suit had to be filed.
https://www.mhc.tn.gov.in/judis/ 3/14 S.A.No.1498 of 1999
3.Defendants 1 to 6 filed written statement controverting the plaint averments. They submitted that the suit property originally belonged to their father A.N.Deva Sagayam. After his demise in the year 1948, it devolved on them. Since Rev.Paul Sandegren offered to conduct charitable activities in the suit property, the same was sold to him for a sum of Rs.18,000/- on 13.12.1960. Rev.Paul Sandegren however could not run the orphanage. There was an understanding between the parties that in the event of Rev.Paul Sandegren being unable to run the orphanage, he was to reconvey the property. As per his assurance, vide Will dated 27.07.1972, he bequeathed the property in favour of the defendants and their mother. The defendants' claim is that the Will came into force on the demise of the testator. The defendants also duly probated the same. The defendants contended that the plaintiff Foundation did not have any title over the property and that they could not maintain the suit.
4.Based on the rival pleadings, the trial Court framed the necessary issues. On behalf of the plaintiff Foundation, Ayyavu examined himself as P.W.1. Ex.A1 to Ex.A48 were marked. On the side of the defendants, four witnesses were examined. Ex.B1 to Ex.B40 were marked on the side of the defendants. After consideration of the evidence on record, the learned trial Judge by https://www.mhc.tn.gov.in/judis/ 4/14 S.A.No.1498 of 1999 judgment and decree dated 26.09.1990 dismissed the suit. Aggrieved by the same, the plaintiff filed A.S No.5 of 1996 before the Sub Court, Thanjavur. By the impugned judgment and decree dated 24.06.1998, the appeal came to be allowed and the judgment and decree passed by the trial Court was set aside and the suit was decreed as prayed for. Challenging the same, this second appeal was filed. It was admitted on the following substantial question of law:-
“Whether the title to the property purchased by an individual could be transferred by treatment of the said property as that of the society without any deed of conveyance?
5.During the pendency of the second appeal, the first four appellants passed away. The counsel for the appellants filed a memo and wanted this Court to bring on record the legal heirs of the deceased appellants. It was however noticed that even before their demise, the original appellants had jointly alienated the suit property in favour of one Karunanidhi on 09.11.2004. It thereafter went into the hands of one Senthamil Selvi vide registered sale deed dated 28.03.2007. It is claimed that there was an understanding between the said Senthamil Selvi and the aforesaid Thiru.M.Ayyavu and there was release of land to the https://www.mhc.tn.gov.in/judis/ 5/14 S.A.No.1498 of 1999 extent of 900 sq.ft on 30.11.2007 (Doc.No.2115 of 2007 on the file of Joint Sub Registrar No.II, Pattukkottai). Senthamil Selvi sold the property to the father of T.Karunanidhi, namely, T.Thirugnanam on 21.04.2011. He filed C.M.P.(MD)No.5552 of 2021 for coming on record as the appellant and prosecute the second appeal. It was allowed and that is how, he is shown as the 9th appellant.
6.Thiru.Ayyavu who originally filed the suit on behalf of the foundation had passed away. There is a serious dispute as to who is entitled to represent the Foundation. Ayyavu's son has filed a memo to come on record to substitute himself in the place of his deceased father. Ayyavu's rival Thiru.Dharmarajan, the 7th defendant in the suit had also passed away. His son D.Abraham Dhoss wants to represent the Foundation. One Thiru.A.Kamaleshwaran claims that he has been authorised by the original Kremmer Sandegran Foundation, Germany and that he had been elected as the President of the plaintiff Foundation in a duly convened meeting. He had filed C.M.P.(MD)No.3561 of 2021 claiming leave to represent the Foundation. Thus, there are three claimants seeking to represent the plaintiff. https://www.mhc.tn.gov.in/judis/ 6/14 S.A.No.1498 of 1999
7.The learned counsel for the appellants initially submitted that unless this issue is resolved, it may not be possible to take up the second appeal on merits. Even though there may be a quarrel as to who should represent the Foundation, there is consensus among the contestants that the impugned judgment and decree passed by the first Appellate Court should be sustained.
8.The learned counsel appearing for the appellants reiterated all the contentions set out in the memorandum of grounds and called upon this Court to answer the substantial question of law in favour of the appellants and set aside the impugned judgment and decree passed by the first Appellate Court and restore the decision of the trial Court. Per contra, the learned Senior Counsel as well as the other counsel submitted on behalf of the Foundation that the impugned judgment and decree do not call for any interference. According to them, the suit property was purchased by the Foundation vide registered sale deed dated 13.12.1960 (Ex.A1) ; If properly construed, it can be seen that the purchase was by Rev.Paul Sandegren not in his individual capacity but only on behalf of the Foundation; this is more than reinforced by Ex.A2 ; Ex.A2 is a claim petition filed in O.S No.348 of 1958 on the file of the District Munsif Court, Pattukkottai, by Kremmer Sandegran Foundation represented by Rev.Paul Sandegren ; in the said claim https://www.mhc.tn.gov.in/judis/ 7/14 S.A.No.1498 of 1999 petition, Rev.Paul Sandegren had clearly stated that the suit property is the property of the Foundation ; when Rev.Paul Sandegren during his life time and that too within few years from the date of execution of Ex.A1, had made it clear that the property is that of the Foundation, then, there is nothing further to probe. They would also point out that Rev.Paul Sandegren had written a letter (Ex.A6) to the local Revenue Divisional Officer clearly stating that the suit property belonged to the Foundation. They would also submit that the defendants cannot hide behind the fabricated Will. Rev.Paul Sandegren passed away on 30.07.1972. The Will propounded by the defendants was allegedly executed just three days prior thereto. The defendants no doubt have probated it. The challenge of the plaintiff Foundation to the probate was negatived only on a technical ground that since according to the plaintiff, the property belonged to it, the execution of the Will in his individual capacity by Rev.Paul Sandegren will not have any bearing on the rights of the plaintiff. They took me through the evidence on record and submitted that no substantial question of law really arises for consideration in this second appeal. They also pointed out that a portion of the property was let out in favour of Government Department. The said Government Department had vacated the building some time in the year 1977. However, the rents had not been paid. Therefore, the department filed an https://www.mhc.tn.gov.in/judis/ 8/14 S.A.No.1498 of 1999 interpleader suit in which one of the defendants herein as well as Ayyavu were shown as defendants. The first Appellate Court had decreed the said suit by giving appropriate findings in favour of the Foundation. Therefore, the learned counsel submitted that this clearly showed that the property was dealt with only as the property of the Foundation. Subsequent trespass and illegal occupation of the suit property by the defendants cannot confer any right on them.
9.I carefully considered the rival contentions and went through the evidence on record. The first question that arises for consideration is whether the suit property was purchased by Rev.Paul Sandegren in his individual capacity or whether the plaintiff Foundation can be said to be the purchaser under Ex.A1- sale deed dated 13.12.1960. The said document is in Tamil. A plain reading of the document shows that the property was sold to Rev.Paul Sandegren. The name of the purchaser is preceded by a description that he is the son of Carl Sandegren, European Christian, residing at Pattukottai. His name is followed by a description 'Dean Kremmer Sandegren Foundation, Pattukkottai'. The expressions “mth;fSf;F” 'jq;fSf;F” are employed in Ex.A1- sale deed. They are honorific expressions in Tamil language that refer only to individuals. The use of these expressions is indicative of the fact that the organization is not the purchaser. https://www.mhc.tn.gov.in/judis/ 9/14 S.A.No.1498 of 1999
10.The learned Senior Counsel appearing on behalf of the respondents would strongly contend that if the sale was to be in favour of Rev.Paul Sandegren, there was no need to describe him as Dean, Kremmer Sandegren Foundation. As already pointed out, in Ex.A1 sale deed, the personal description of Rev.Paul Sandegren as well as the designation which he held in the organisation have been set out. There is nothing to show in Ex.A1 that the purchase was by the plaintiff Foundation. In any event, the employment of the honorific expressions as mentioned above would clearly show that the purchase was made only in his individual name and capacity and no manner of construction of Ex.A1 document can lead to the conclusion that the Foundation was the purchaser.
11.Admittedly, the plaintiff Foundation is a registered society. It is having its own set of by-laws. Clause 4 of Ex.A9 (rules and regulation of the foundation) talks about acquisition and dealing of the property of the Foundation. Clause 6 relates to audit. As rightly contended by the learned counsel for the appellants, whenever a society purchases a property, a resolution will be formally passed in the meeting of the committee and there will be a clear flow of funds. From a reading of Ex.A1, there is no reference to passing of any such resolution. There is no evidence to show the flow of funds.
https://www.mhc.tn.gov.in/judis/ 10/14 S.A.No.1498 of 1999
12.The learned Senior Counsel and other counsel appearing for the Foundation laid great stress on the contents of Ex.A2. Ex.A2 is the claim petition in which the property in question had been described as the property of the society. But on that score, one cannot come to the conclusion that the suit property is the property of the Foundation. It is a well settled principle of law that there cannot be any estoppel against title. An admission will not confer or create title. The learned counsel for the appellants relies on the decisions reported in AIR 1936 PC 264, AIR 1966 SC 605 and (2006) 10 SCC 696 in this regard. In Ex.A2-claim petition, the cause title reads as “Kremmer Sandegren Foundation represented by the Dean Rev.Paul Sandegren”. This may be contrasted with the recitals in Ex.A1. There is a clear difference in law between an individual representing the association and an individual being described as the office bearer of an association. I have already held that Rev.Paul Sandegren had purchased the suit property in his individual capacity under Ex.A1. Therefore, the title could have passed from him to the registered society only in the manner known to law and not on the strength of certain averments made in a claim petition.
13.Chapter II of the Transfer of Property Act, 1882 talks about transfers of property by act of parties. Section 5 of Act is as follows :
https://www.mhc.tn.gov.in/judis/ 11/14 S.A.No.1498 of 1999 “5.Transfer of Property defined :- In the following sections “transfer of property” means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, and one or more other living persons and to “to transfer property” is to perform such act.
[in this section “living person” includes a company or association or body of individuals, whether incorporated or not, but nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies, associations or bodies of individuals.]” There can be several modes of transfer. Sale is one such mode. Section 54 of the Act not only defines “sale” but also stipulates as to how it should be made. It reads as follows :
“Sale” defined.—“Sale” is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.
Sale how made.—Such transfer, in the case of tangible immoveable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.
In the case of tangible immoveable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.
https://www.mhc.tn.gov.in/judis/ 12/14 S.A.No.1498 of 1999 Delivery of tangible immoveable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.
Contract for sale.—A contract for the sale of immoveable property is a contract that a sale of such property shall take place on terms settled between the parties.
It does not, of itself, create any interest in or charge on such property.” The provision clearly states that sale in the case of immovable property can be made only by a registered instrument. The expression “only” is significant (vide Godhan v. Ram Bilas, AIR 1995 All 357). Title will not pass until the sale deed is registered (vide Cherichi v. Ittianam AIR 2001 Ker 184). Admittedly, Rev.Paul Sandegren had not executed any registered sale deed in favour of the plaintiff Foundation. “Gift” is another mode. Section 122 defines “Gift' and Section 123 states that the transfer by Gift must be effected by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. In this case, no such gift deed has been executed by Rev.Paul Sandegren.
Therefore, the plaintiff Foundation is incompetent to seek the relief of declaration of title in its favour in respect of the suit property. The purpose of purchasing the property might have been for running an orphanage in the name of the plaintiff Foundation in https://www.mhc.tn.gov.in/judis/ 13/14 S.A.No.1498 of 1999 the suit property. But that is insufficient to pass title in favour of the plaintiff. The first appellate court clearly erred in conferring title on the plaintiff by relying on Ex.A2 claim petition and Ex.A6 letter addressed to the Revenue Divisional Officer.
14.The revenue documents stood only in the name of Rev.Paul Sandegren. The contesting defendants admittedly were in possession of the suit property and that is why, the plaintiff sought recovery of possession. The suit could have been decreed only if the plaintiff had established superior title. Otherwise, the person in possession is entitled to continue in possession [vide Rame Gowda vs. Varadapa Naidu (2004) 1 SCC 769]. The contesting defendants claim title based on a Will said to have been executed by Rev.Paul Sandegren. The Will had been probated. The endeavour of the plaintiff to revoke the same was in vain. Of course, the attempt of the plaintiff was negatived only on the ground that they had no caveatable interest. If according to the plaintiff, the property was theirs, then, they need not bother if Rev.Paul Sandegren had executed a Will in favour of the contesting defendants bequeathing the property. Yet, the defence of the appellants is not upheld on the strength of the so called Will. On the other hand, I rest my decision only on the ground that the plaintiff Foundation has not established a superior title. https://www.mhc.tn.gov.in/judis/ 14/14 S.A.No.1498 of 1999
15.The purchase of the suit property under Ex.A1 was by Rev.Paul Sandegren in his individual capacity. The plaintiff Foundation is a registered entity and distinct from Rev.Paul Sandegren, the individual. The title could have passed from the individual to the society of which he was the office bearer only in the manner laid down in the Transfer of Property Act, 1882. Since no registered deed of sale or gift has been produced, I answer the substantial question of law in favour of the appellants. The judgment and decree passed by the first appellate Court is set aside.
16.This second appeal is allowed. No costs. Consequently, connected miscellaneous petitions are closed.
08.07.2021
Internet : Yes/No
Index : Yes/No
skm
To
1.The Subordinate Judge, Thanjavur.
2.The District Munsif, Pattukottai.
Copy to :
The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis/ 15/14 S.A.No.1498 of 1999 G.R.SWAMINATHAN, J.
skm Judgment made in S.A.No.1498 of 1999 08.07.2021 https://www.mhc.tn.gov.in/judis/ 16/14