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Judgment
K. Sampath, J.—The defendant in O.S. No.745 of 1982 on the file of the XV Assistant Judge, City Civil Court, Madras is the appellant in
the Second Appeal. The respondent herein filed the suit, for directing the appellant to deliver vacant possession of premises No. 68, Armenian
Street, Madras 1, more fully described in the schedule to the plaint on the following averments.
The property was endowed for religious and charitable purposes known to Muslim law and exempted under G.O. Ms. No. 2000 from the
purview and operation of Tamil Nadu Act 18 of 1960 as amended by Act 23 of 1973. It was let out to the appellant on a monthly rent of Rs.
1,000/-, the tenancy reckoned as per English Calendar month under a registered deed dated 1.2.1962 for a period of ten years and subsequently
on the expiry of the lease, the period of lease was extended for a further period of five years. By notice dated 29.9.1981, the tenancy of the
appellant was determined according to law. It was acknowledged on 30.9.1981, and a reply sent therefore offering to pay an enhanced rent, to
which a suitable rejoinder was sent reiterating the demand for possession of the premises. To the rejoinder, the appellant caused a further reply
dated 9.1.1982 to be sent disputing the respondent''s right to evict the appellant on the footing that the premises in question was exempted from
the purview and operation of the Act 18 of 1960 as amended by Act 23 of 1973. Since on the expiry of the tenancy, the defendant had failed to
deliver possession, the suit for possession came to be filed. The suit was valued for purposes of Court fees and jurisdiction for the relief of
possession u/s 43 (a) of the Tamil Nadu Court Fees and Suits Valuation Act, 1955. In the plaint, the respondent is stated to be a Religious and
Charitable Trust registered under the Societies Registration Act, represented by its Secretary Mareeth Abdullalh Basha.
The appellant resisted the suit contending inter alia as follows:
The tenancy was for a period of five years, expressed as commencing from 1.1.1977 and therefore, it could not be reckoned according to the
English, calendar month, but the rent was being paid according to the English calendar month. The notice of termination with the expiry of the
calendar month was not in accordance with law and therefore, there had been no proper termination of tenancy. The appellant continued to be in
occupation as a tenant by holding over. Again, the respondent was not a religious and charitable Trust within the meaning of G.O. Ms. No. 2000
and in any event, the said G.O. was not applicable to the respondent. The G.O. itself was bad in law being violative of Article 14 of the
Constitution of India. The tenancy was protected by the Tamil Nadu Act 18 of 1960. The Civil Court had no jurisdiction to pass a decree for
delivery of vacant possession of the premises. The expiry of the period of lease was not a ground mentioned in Section 10of the Tamil Nadu Act
18 of 1960 for evicting a tenant. There was no cause of action against the appellant.
There was an additional written statement filed by the appellant to the following effect:
The lessor of the appellant in respect of the suit property was Mareeth Hajee Mohamed Ismail Saheb as the Muthavalli and Nazim and for and on
behalf of the wakfnama and the respondent was only the person authorised by the said Trust to receive the rents from the appellant. It was only an
agent of the Trust to collect the rent. The respondent, being not the lessor but only an agent of the lessor was not entitled to sue much less for the
relief''s as prayed for in the suit. There was no relationship of lessor/ lessee between the parties. The suit was liable to be dismissed.
On the above pleadings, the trial Court framed the necessary issues and additional issues:
Issues:-
Whether the plaintiff was entitled to recover possession?
To what relief ?
Additional issue:
Whether the defendant was a lessee/ tenant? on the side of the respondent one Kaliya Basha was examined and Exs. A. 1 to A. 13 were marked.
On the side of the appellant no witness was examined nor was any document marked.
The trial Court adverted to the various documents filed on behalf of the respondent and found that the respondent was a Trust coming within the
purview of G.O. Ms. No. 2000 and therefore, exempted from the application of the provisions of the Rent Control Act and that the suit was
therefore maintainable. On the materials, the trial Court further found that the suit property belonged to the respondent/Trust, that the appellant had
been paying the rent to the respondent/Trust and it was not open to the appellant to contend that the respondent was only an agent and it could not
maintain the suit.
As regards the deficiency in the notice issued, the trial Court found that it was valid that it complied with the requirements of law and the
contract between the parties. So holding, by judgment and decree dated 23.2.1987, the trial Court granted the prayer of the respondent.
The appellant filed appeal A.S. No. 27 of 1988 before the VI Additional Judge, City Civil Court, Madras, who by his judgment and decree
dated 6.4.1988 confirmed the decision of the trial Court and dismissed the appeal. Aggrieved, the present Second Appeal has been filed.
At the time of admission, the following substantial question of law was framed for decision in the Second Appeal:
Whether the respondent is the landlord and would fall within the scope of G.O. Ms. No. 2000 dated 16.8.1986?
Mr. G. Subramaniam, learned Senior Counsel appearing for Mr. M.R. Raghavan, learned counsel for the appellant made the following
submissions:
The plaintiff/respondent was a registered society and no resolution authorising the respondent to initiate proceedings had been passed. If the
respondent was to be treated as a Trust, the other Trustees not having been impleaded the suit was not maintainable. If it was a society, G.O. Ms.
No. 2000 would not apply. If it was a Wakf Property, the Wakf Act, 1954, required notice to be issued to the Wakf Board and it had not been
done and there was also no pleading. The judgment of the lower appellate court was a non-speaking judgment, no point for consideration had
been framed for decision as required under Order 41, Rule 31C.P.C. The society, came into existence, only in the Year 1969. There was no
document produced transferring the property, subject matter of the proceedings, to the Society.
The learned counsel referred to the various provisions of the Tamil Nadu Societies Registration Act and relied on the following decisions in
support of his contentions:
Nibro Ltd. v. National Insurance Co. Ltd. (Vol. 70 Company Cases 388)
2 Banamali Samal Vs. State of Orissa, .
The Idol of Sri Kannika Parameswari Amman v. The Educational Trustees, Co. Ltd. (1990-1-L.W. 291), and
Society of the Sisters of The Blessed Virgin-Mary, etc v. Madras-E-Bakiyanathus Salithath, Vellore, (1990-1-L.W. 607).
The learned Senior Counsel further submitted that the decision reported in Ranjan Devasahayam v. Hindustan Bible Institute of India (1996-1-
L.W.533) overlooking, as it does the decision of earlier Division Bench in S. Guhan v. Rukmini Devi (100 L.W.182=AIR 1988 Madras 1) cannot
be stated to be good law.
Meeting the arguments of Mr. G. Subramaniam, learned Senior Counsel for the appellant, Mr. V.S. Subramanian, learned counsel for the
respondent submitted that the point raised by the learned Senior Counsel was not raised in the pleadings, and the same could not be allowed to be
raised at the stage of the Second Appeal. The learned counsel also referred to the notices exchanged between the parties and submitted that the
title of the respondent was not disputed by the appellant. He also drew the attention of the Court to the various clauses in the Trust Deed and also
the Memorandum of Association, Ex. A.4. of the respondent/ Education Trust and submitted that it was for the appellant to plead and prove that
Merit Hajee Abdullah Basha Saheb, representing the respondent, was not the agent. The learned counsel, in particular, referred to Clause 17 of
the Memorandum of Association and submitted that the decision relied on by the learned ''Senior Counsel arising under the Companies Act and
reported in Nibro Ltd. v. National Insurance Co. Ltd. (Vol. 70 Company Cases 388 would not apply to the case on hand as there was a specific
clause in the Memorandum of Association providing for institution of suit or other proceedings by the Secretary-cum-Treasurer, namely, Merit
Abdulla Basha Saheb.
According to the learned counsel, the other decisions relied on by the learned Senior Counsel for the appellant would not also apply to the
facts of the present case and in particular the learned counsel submitted that the decision of Profulla Chorone Requitte and Others Vs. Satya
Choron Requitte, would not apply to the case on hand as it was a dispute among the Shabaits and the other decision in S. Guhan v. Rukmini Devi
Arundals ( AIR 1988 Madras 1 = 100 L.W. 182) was also equally inapplicable to the facts of the present case; there was no legal question
involved and that no question of law much less substantial question of law arose for decision in the present case.
Mr. G. Subramaniam, learned Senior Counsel, in reply submitted that the dichotomy between the Society and the Trust must be understood in
the proper perspective and even conceding that there was any authorisation given to Merit Abdulla Basha Saheb, such authorisation being contrary
to Sec. 49 of the Indian Trust Act it had to be held that the plaintiff was not properly represented. The learned Senior Counsel reiterated that there
was no evidence to show that the property, in respect of which relief, was claimed had been transferred to the Society.
The deed of Trust is Ex.A. 1, dt 2.4.1945. This was executed by Merit Hajee Mohammed Ismail creating a Wakf in respect of his properties.
Under the document he constituted, nominated and appointed several persons as Trustees. He was himself one of the Trustees. He had started
two institutions, namely
Islamia Middle School, Pernambut, and
Arabic School for girls known as Madarase Nishvan and this was attached to item No. 1.
He also expressed a desire that the Trustees should start an Arabic college in Pernambut for teaching Holy Quran and other religious subjects
pertaining to other higher religious studies known as ""Dhiniyath"" to the people, who came to study there. The founder also gave a direction that for
the purpose of improving education in the locality, a working committee should be formed and the name of that committee should be Merit
Education Society, Pernambut (emphasis supplied). He also reserved rights in himself to constitute the first working Committee. Besides the
aforesaid ten trustees, there should be six other members in the said Working Committee of Merit Education Society. This Committee of 16
members should look after and supervise the imparting of education in the aforesaid schools and institutions and they should be responsible for
imparting of education properly.
Thereafter, the Trust was formed in 1969 and was registered under the Societies Registration Act 21 of 1860. The certificate of registration is
Ex.A.2 in the suit. The certificate of registration u/s 12 A(a) of the income tax Act, 1961, is Ex.A.3 The Trust, among other things, habits aims and
objects to promote secular and religious (Deeniyath) Education among the people in accordance with the stipulations laid down in the ""Deed
Trust"". There is a reference in the Trust Deed, Ex. A. 1, that Janab Merit Abdulla Basha Saheb had been made Secretary-cum-Treasurer and
Trustee. As directed in the Deed Trust, Ex. A. l, six people were nominated as members. An Executive Secretary was also appointed. The Deed
provides that in addition to the generality of the powers of the working committee in the matter of direction, control and management of the Trust
and its affairs, except its funds and properties, the working committee should, in particular, have the following powers to advise and assist the
Trustee.
Clause A says :- ""To improve the quality of instruction by providing necessary facilities in the three institutions created by the Trust"" like adequate
furniture, library, laboratory etc., as stipulated in the Dead Trust.
While dealing with the powers and functions of the Trustees, Clause 5 provides as follows:
All the properties of the Merit Education Trust shall vest in the Trustees as Wakf properties absolutely and for ever and shall be administered by
the Trustees in accordance with the stipulations laid down in the Dead Trust.
The Secretary-cum-Treasurer has been directed to convene the meeting of the Trustees and of the working committee in consultation with or
at the instance of the president ad shall be personally incharge of the office of the Trust and its administration.
Clause 17 provides as follows:
The Trust shall sue and be sued by the Secretary-cum-Treasurer. It shall have a common Seal. All documents executed by and in favour of the
Trust shall be executed in the name of the Trust, represented by the Secretary-cum-Treasurer for the time being unless the Trustees, at a special
meeting convened for the purpose, confer such powers of the representation on any other office-bearer or Trustee.
On 14.12.1961, there was a lease arrangement entered into between M. Hajee Mohamed Ismail Saheb in his capacity as the Muthawalli and
Nazim of for and on behalf of the Wakf nama created by the Deed Trust executed at Madras on 2nd day of April, 1945, and the appellant in
respect of the suit property, as per the terms of which the appellant was granted a lease for a period of 15 years renewable for a further period of
5 years. While the lease was in force, the Merit Education Trusts came into existence, the relevant terms in respect of which have already been
noticed.
In my view, the Education Trust is not an independent Trust. It is only an extension, an appendage or an adjunct of the wakf and it cannot be
stated to be a Society having an independent existence in relation to the Wakf. It is part of the Wakf, already created under Ex. A. l in the Year
1945. If this view is taken, then much of the force in the contentions raised on behalf of the appellant by the learned Senior Counsel. Mr. G
Subramanian to the effect that there should be a resolution passed, that there should be transfer of the property from the Wakf of the Education
Trust, that there should be an authorisation to enable the respondent to the represented by the Secretary-cum-Treasurer, that there had been no
proper representation by the plaintiff, will go.
Clauses 17 in Ex. A.4. Memorandum of the Education Trust provides for the Secretary-cum-Treasurer to sue and be sued on behalf of the
Trust.
The decision of the Delhi High Court, reported in Nibro Ltd v. National Insurance Co. Ltd. (1991 70.CC 388) cannot be pressed into service. In
that case a power to institute a suit is to be specifically conferred on the Director, who purported to represent the company and use on behalf of
the Company. It was held that such power to sue can be conferred by the Board of Directors only by passing a resolution in that regard. In that
case, on facts, the learned Judge of the Delhi High Court held that the Director, who filed the suit, had no authority to institute a suit as the plaintiff
has not placed on record its memorandum or articles of association nor any resolution passed by the company authorising him to institute the suit,
that the said Director did not state that he was in a position to depose to the facts of the case, that no resolution was passed by the company
ratifying his institution of the suit and that there was no evidence that he was managing the day-to-day affairs of the company or was in charge of
the insurance claim which was the subject-matter of the suit. In that case, before the Delhi High Court, it was contended on behalf of the plaintiff
that under Order 29 Rule 1of the Code of the Civil Procedure, the Plaint could be signed and verified on behalf of the Corporation by the
Secretary of by any Director or other principal officer of the Corporation, who was able to depose to the facts of the case and that since the
Director concerned had been authorised by the company to sign and verify the plaint on behalf of the plaintiff-company, there was no separate
resolution necessary authorising him to institute the suit. This contention was rejected on the ground that Order 29 Rule 1CPC provides for
subscription and verification of pleadings and states that in suits by or against the Corporation any pleadings may be signed and verified on behalf
of the Corporation by the Secretary or by any director or other principal officer of the Corporation who is able to depose to the facts of the case.
But it had not been proved that the suit had been instituted by any such person with the authority of a principal officer of a company. The director
did not say that he was in a position to depose to the facts of the case in relation to suits filed on behalf of the limited company did not extend
beyond what was laid down in Order 29CPC and that provision did not entitled the Principal Officer of a company to file a suit on its behalf and
for that the authority had to be found either in the articles of association of the company or in the resolution of its Board of Directors, in coming to
such conclusion, the leaned Judge referred to a number of other decision and it is not necessary to notice the same. As already pointed out, the
Trust Deed in the instant case provides for the Secretary-cum-Treasurer to sue and be sued and only when somebody else is to do that job, the
Trustees have to convene a special meeting for the purpose, confer such powers of representation on any other office-bearer or Trustee. The
representation in the instant case by Merit Hajee Abudulla Basha Sahab, who was the Secretary-cum-Treasurer and Trustee, was in order and no
exception can be taken to the same and the suit cannot be held to be not maintainable on this score. No resolution is required.
The next contention raised by the learned Senior Counsel is that if the suit is by a trust, the other trustees have to be impleaded and in support
of this contention, the learned Senior Counsel relied on the judgment of the Supreme Court in Profulla Chorone Requitte and Others Vs. Satya
Choron Requitte, . As rightly pointed out by Mr. V.S. Subramanian, learned counsel for the respondent, that was a matter among the Trustees and
the Supreme Court upheld the contention that the deity had to be represented by all the shebaits and sons. As all the shebaits had not been made
parties the suit was not properly constituted and was liable to be dismissed on that score.
This case has no application to the facts of the present case. As a sequel to the terms of the said Wakf Education Trust came into existence and the
Trust authorises under Clause 17 the Secretary-cum-Treasurer to sue and be sued on behalf of Trust. The contention by the leaned Senior
Counsel that the suit has not been properly constituted in the absence of other Trustees, cannot also be sustained.
These two objections have been raised on behalf of the appellant. Once we reject the objections raised by the learned Senior Counsel, then in
view of the plaintiff being a wakf, G.O.Ms.No.2000 would automatically come into play and the suit would therefore be maintainable.
The learned Senior Counsel also contended that absolutely no material had been produced to show that the property belonged to the society,
when having regard to what is stated above, the society was only an appendage of the original wakf and no separate transfer of the property was
required, even conceding that no document evidence transfer of the property in favour of the society had been produced and in fact no transfer had
itself taken place the respondent cannot be non-suited on this score.
The learned Senior Counsel relied on the judgment of a Division Bench of this Court, reported in S. Guhan v. Ruhnini Devi Arundale (AIR
1988 Madras 1=100 L.W. 182). In that case a suit was filed for framing of a scheme for proper administration of the Trust and out of six
Trustees, only four were impleaded as parties and the plaintiff had also not stated that the suit was being filed on behalf of the Trust. The Division
Bench held that the Trust being a necessary party and not having been impleaded, the suit as filed was liable to be dismissed. I am afraid, this case
also does not in anyway help the case of the appellant.
It is not necessary to go into details in the said case as the ratio laid down in that case has no application to the facts of the present.
The learned Senior Counsel relied on a judgment, reported in Society of the Sisters of the Blessed Virgin-Mary etc. v. Madras B-
Baxiyanathus Salihath Vellore ( 1990 1-L.W. 696 ). In that case, the question relating to representation of a society, registered under the Societies
Registration Act, arose for consideration and having regard to the provisions of Sec. 20 of the Tamil Nadu Societies Registration Act, which
required that a person competent to represent a society, is the committee or any officer authorised in this behalf by its bye-law and the
representation in that case was by a person, who had not been so authorised, it was held that the Society was not properly represented. That
decision has no application to the facts of the present case.
In Ranjan Devasahayam v. Hindustan Bible Institute of India (1996-1-L.W. 533) objection was raised to the plaintiff in those proceedings was
not a Trust, but was only a society and therefore could not claim its exception under G.O. Ms. No. 2000. It was held by Hadi, J, that the
Institution registered as a society being the owner of the building, and under the Memorandum of Rule and Regulations of the Society, being a
Trust, it was held that it was a Trust and could come within the G.O and claim exception.
The learned Senior Counsel submitted that in view of the decision of a Division Bench reported in AIR 1988 Madras 1, the decision of Hadi,
J., cannot be stated to be good law. It is not necessary to decide that point in the present proceedings.
In the Idol of Sri Kannika Parameswari Amman v. The Education Trustees, to. Ltd. (1990-1-L.W. 291) it has been held by a Division Bench
of this Court that the Idol of Sri Kannika Parameshwari Amman is a public religious and denominational institution belonging to the Arya Vaisya
Community and it is a religious public trust entitled to file the suit for recovery of possession of the suit property comprising of a land and building,
and for damages and also for use and occupation, claiming the benefit of G.O. Ms. No. 2000 as a public religious Trust.
The learned Senior Counsel submitted that the dichotomy between the society and the trust should be maintained. Thus has only to be stated to
be rejected having regard to the finding that the Wakf and the society are not separate independent entities.
The learned Senior Counsel relied on Section 49of the Indian Trusts Act and submitted that the authority granted in the instant case to the
Secretary-cum-Treasurer is contrary to Section 49of the Indian Trusts Act.
Section 49of the Indian Trusts Act runs as follows ""Where a discretionary power conferred on a trustee is not exercised reasonably and in good
faith, such power may be controlled by a Principal Civil Court of original Jurisdiction"".
The Indian Trusts Act has been passed to define the law among the Private Trust and Trustees, Section 1says that the rules of Mohammedan Law
as to Wakf or the mutual relations of the members of an undivided family as determined by customary or personal law are not affected by the
provisions of the Indian Trusts Act. Even conceding that the provisions of Indian Trusts Act are applicable to Public Trusts, in as much as it was
not shown by the appellant that the discretionary power conferred on the Trust in the instant case had not been exercised reasonably and in good
faith, this contention is to be rejected as devoid of merits. Even at the beginning of the arguments, the learned Senior Counsel submitted that he was
attacking the decision of the courts below only on technicalities. The technical objections raised by the learned Senior Counsel are rejected in toto.
The learned Senior Counsel made one other point that the lower appellate Court had not framed points for consideration. A reading of the
judgment of the lower Appellate Court clearly shows that it understood the scope of the enquiry. It had considered it all the aspects necessary for
a decision in the case and had approached the whole question from a proper angle. I had occasion to decide the question as to whether a
judgment would be vitiated in the absence of framing of a point for consideration by the Appellate Court under Order 41, Rule 31CPC. I held, that
as long as the appellate court know what it was doing, that it was seized of the controversy of contention between the parties and had decided the
matter by adverting to the necessary materials on record, the technical objection with regard to non-framing of point for consideration would not
avail. (See D. Sahul Hameed v. Swamy Nellaiappar Sri Kanthimathi Ambal Devasthanam, Tirunelveli through its Executive Officer (2000-3-
L.W.806=2000 III CTC 232). For all the reasons stated above, I answer the substantial question of law against the appellant and dismiss the
Second Appeal, However, there will be no order as to costs.