IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :: 06-08-2008 CORAM THE HONOURABLE MR.JUSTICE S.J.MUKHOPADHAYA AND THE HONOURABLE MR.JUSTICE V.DHANAPALAN O.S.A.No.185 OF 2008 Khursheed Banu ... Appellant -vs- The Official Trustee of Tamil Nadu, representing the estate of Caku Adikesavulu Naidu. ... Respondent Appeal under Order 36 Rule 11 of the Original Side Rules. For appellant : Mr.A.Palaniappan For respondent : Mr.M.Devendran J U D G M E N T
V.DHANAPALAN,J.
This appeal is filed against the order dated 28.03.2008 made in Application No.1218 of 2008 in O.P.No.82 of 1943, in and by which the prayer of the appellant to direct the respondent to execute the sale deeds in respect of Door Nos.20,19 and 18, C.N.K.Road, Triplicane, Chennai-5, and No.49, Lal Mohammed Street, Triplicane, Chennai-5, as per the order, dated 30.03.1984, passed in Application No.103 of 1984, was rejected by a learned single Judge.
2. The facts as under :
2.1. The Trust known as Caku Adikesavulu Naidu has been vested with the Official Trustee of Tamil Nadu as per the orders of this Court, dated 30.04.1943, in O.P.No.82 of 1943. The Official Trustee has been appointed as the executor of the Last Will and testament of the deceased Caku Adikesavulu Naidu, who died on 12.01.1943. The estate of the deceased comprises several properties, which are house sites, and the same has been let out to various tenants on monthly land tenancy basis. The tenants have been permitted to put up structures and the same were made and they continued to pay the land rent.
2.2. The properties belonged to the Trust has been vested with the Official Trustee and he is administering the Trust in accordance with the provisions of the Official Trustees Act,1913. The Official Trustee has filed an application No.103 of 1984 for grant of permission to sell the lands to the occupiers, namely, the land tenants for the price fixed by this Court. The Official Trustee, in the said application, has filed a report stating that there are about 24 land tenants in the said properties; one Mukkadir was a land tenant in respect of the properties bearing Door Nos.20,19 and 18, C.N.K.Road, Triplicane, Chennai-5 and 49 Lal Mohammed Street and, after his death, the appellant, wife of Mukkadir, has been recognised as land tenant and, as such, the Official Trustee has made her as respondents 8,9,10 and 11 in the said Application No.103 of 1984.
2.3. This Court, on 30.03.1984, in Application No.103 of 1984, ordered sale of the said properties based on the specific prayer of the respondent, seeking for permission for sale of the properties, to prospective tenants, who are in occupation of the respective sites, and directed the tenants to pay the sale consideration so arrived at by the Court in 20 equal instalments and the first instalment should commence from 01.05.1984. It was also observed in the said order that the said land tenants/occupants should continue to pay the rent till the actual execution of the sale deeds, to be effected by the respondent, and that the sale deeds be executed on receipt of the last instalment of the sale consideration.
2.4. The appellant was in a disabled position to pay the balance sale consideration, but he paid the substantial sum of 12 instalments. the respondent preferred an Application No.6229 of 1987 for forfeiture of Rs.60,040.41 paid by the appellant, being the part of the sale consideration, and this Court directed the respondent to receive the balance sale consideration for the said sites with interest at 12% per annum for the delayed payment and, accordingly, the appellant paid the balance sale consideration on 05.10.1988.
2.5. Subsequent to compliance of the earlier orders, further orders were passed by this Court in Application No.6229 of 1987, dated 07.10.1988, directing the respondent to executed the sale deeds in respect of the said properties in favour of the appellant and, in spite of the same, the respondent had deliberately failed to execute the sale deeds in respect of the said properties. Aggrieved over the same, the appellant preferred Application No.1218 of 2008 and the same was dismissed by the learned single Judge. Hence, this appeal.
3. The respondent has filed written submissions, stating as follows :
3.1. The proceedings in Application No.103 of 1984 came to be initiated under the circumstances where the land tenants were paying low rent and most of the tenants had put up superstructures in the said lands and proposed to get sale deeds in their favour; for the welfare and to augment the income of the Trust, he took out the said application for sale of the lands to the land tenants and, therefore, it cannot be contended that said application was filed under the Official Trustees Act, but the provisions of the Amendment Act 2 of 1996 would apply to the present case.
3.2. Taking into consideration the interest and welfare of the Trust, this Court had allowed the application, giving directions for proper administration of the Trust in accordance with law, and, hence, moving this Court by the then Official Trustee for sale of the properties in those circumstances would not tilt the balance in favour of the appellant.
3.3. The Amendment Act 2 of 1996 has been introduced with the object to deny the benefits under the Principal Act to the tenants of the lands owned by religious charity, which has been introduced by the legislature only to protect the interest of the religious Trust. Further, the value of the land has risen manifold. Though the order was passed by this Court, the object of the Amendment Act 2 of 1996 shall apply to the present case also. Accordingly, he prayed for dismissal of the appeal.
4. Learned counsel for the appellant would contend that the respondent had filed an unfounded report in Application No.1218 of 2008 under the Tamil Nadu City Tenants’ Protection Act,1921; as per the amendment of Section 1 to the said Act, the benefits conferred on the tenants under the provisions of Section 9 have been diluted in respect of the lands belonging to religious institutions or religious charity of Hindu, Muslim, Christian or other religion, but the said provisions are not applicable to this case since the principal Act itself is not applicable and only the Official Trustees Act,1913, would apply; the action of the respondent arises out of the sale being brought about in respect of the property vested in it by virtue of the application of the provisions of the Official Trustees Act; the respondent has not invoked the provisions of the Act, as contemplated under Section 9 before the competent Court, instead, he invoked the provisions of the Official Trustees Act and filed the Application 103 of 1984 in the main O.P.No.82 of 1943 for permission of sale of the properties to the prospective tenants, who are in occupation of the respective sites and that the provision of the Official Trustees Act is a comprehensive Code and the same does not require the imputation of another Act or Code for its sustenance and application. The mainstay of the learned counsel is that though the appellant has paid the entire amount and approached the respondent for sale of the properties, the sale has been postponed by the respondent without any basis or reason and, hence, this appeal is to be allowed.
5. We have heard the learned counsel for the parties and also gone through the records.
6. It is not in dispute that the appellant is the wife of the occupant of the site Nos.18, 19 and 20 of C.N.K.Road, Triplicane, Chennai, and 49, Lal Mohamed Street, Chennai. By an order of this Court, dated 30.03.1984, passed in Application No.103 of 1984, the respondent was permitted to sell the above referred sites, with a direction that the prospective purchasers, who were in occupation of the sites, should pay the sale consideration in 20 equal monthly instalments and the first of such instalments should commence from 01.05.1984, subject to the condition that the occupants should continue to pay the rents till the actual execution of the sale deeds. Thereafter, the respondent was directed to execute the sale deeds on receipt of last instalment of the sale consideration and after payment of entire arrears of rent. It was also stated therein that if any of the occupants was inclined to pay the cost of the land in one lumpsum, sale deed should be executed as soon as the sale consideration was paid to the respondent.
7. Pursuant to the said order, the appellant paid 12 instalments in respect of the said properties and committed default in payment of instalments 13 to 20. However, by a subsequent order, dated 07.10.1988, passed in Application No.6229 of 1987, the appellant was granted extension of time to pay the balance consideration and the same was also paid by her on 05.10.1988. Against the said order passed in Application No.6229 of 1987, the Official Trustee preferred O.S.A.No.30 of 1990 and the same came to be dismissed for non-prosecution on 14.08.2001. There were subsequent arrears of rent payable by the appellant and the same were also paid. Despite that, since the respondent did not execute the sale deeds in favour of the appellant, the appellant filed Application No.1218 of 2008, for a direction to the respondent to execute the sale deeds, which application came to be dismissed.
8. By Amendment Act, the Tamil Nadu legislature has amended Section 1 of The Chennai City Tenants’ Protection Act,1921, hereinafter referred to as “the Principal Act” and added certain provisions in sub-section (3), which are as under :
“Certain pending proceedings to abate.- Every proceeding instituted by a tenant in respect of any land owned by any religious institution or religious charity belonging to Hindu, Muslim, Christian or other religion and pending before any Court or other authority or officer on the date of publication of this Act in the Tamil Nadu Government Gazette, shall, in so far as the proceeding relates to any matter falling within the scope of the principal Act, as amended by this Act, in respect of such land, abate and all rights and privileges which may have accrued to that tenant in respect of any such land and subsisting immediately before the said date shall in so far as such rights and privileges relate to any matter falling within the scope of the principal Act, as amended by this Act, cease and determine and shall not be enforceable :
Provided that nothing contained in this section shall be deemed to invalidate any suit or proceeding in which a decree or order passed has been executed or satisfied in full before the said date.”
9. The amendment was published in the Gazette on 11.01.1996 as per Sub-section (3) of Section 1 and it came into force from the date of publication. In other words, from 11.01.1996, benefits conferred on the tenants under Section 9 of the Principal Act, namely, The Chennai City Tenants’ Protection Act,1921, have been taken away in respect of the lands belonging to religious institution or religious charity of Hindu, Muslim, Christian or other religion.
10. If the tenant complies with the order passed under Section 9 (1) (b) and deposits the amount within the time as fixed, the Court has to pass an order, directing the conveyance by the landlord to the tenant. It is true that as per Section 9 (3) (b), on passing an order under Clause (a), the suit or proceeding shall stand dismissed. In the light of the language used in Clause (a) i.e., “conveyance” to be made by the landlord to the tenant, until the proper document conveying title to the tenant is executed, it is presumed that the proceeding is kept pending.
11. In the case on hand, the sale in favour of the appellant came to be ordered on 30.03.1984 in Application No.103 of 1984 under the Tamil Nadu City Tenants’ Protection Act,1921. Under the circumstances, the appellant sought for execution of the sale deeds. However, by the amendment of Act 2 of 1996, all rights and privileges, which are accrued to the appellant pursuant to the order dated 30.03.1984 in respect of the land in question, shall cease to operate and not be enforceable, as the sale deeds have not been executed in favour of the appellant as on the date of 11.01.1996. It is also not the case of the appellant that the said order of sale has been satisfied in full before 11.01.1996. The Amendment Act has given the respondent a valuable right of exemption from the provisions of the Principal Act. Therefore, since no sale deed was executed in favour of the appellant as on 11.01.1996, the prayer of the appellant seeking for execution of the sale deeds, as ordered in the earlier proceedings, cannot be granted. In other words, the relief granted in the order dated 30.03.1984 in Application No.103 of 1984 stood automatically abated, in the wake of the Amendment Act 2 of 1996 coming into force.
12. All the above points have been dealt with by the learned single Judge in extenso, by placing reliance upon a decision of the Supreme Court in S.Bagirathi Ammal v. Palani Roman Catholic Mission, 2007 (5) CTC 881, while dismissing the application filed by the appellant. The learned single Judge, while observing that the appellant has deposited the entire sale consideration and some of it with interest at 12% per annum, also rightly directed the respondent to refund the entire amount deposited by the appellant towards sale consideration in respect of the property in question.
13. An argument is advanced by the learned counsel for the appellant that only under Section 25 of the Official Trustees Act,1913, the High Court has power to make orders in respect of the property vested in the Official Trustee, which, inter alia, provides that the High Court may make such orders as it thinks fit respecting any trust property vested in the Official Trustee or the income or produce thereof.
14. Though the said point was not raised before the learned single Judge and since argued before this Court, it is to be stated that under the proviso to Clause (3) (b) (f) of Section 1 of the Act, it is provided that nothing contained in this Act shall apply to the tenancies of land owned by any religious institution or religious charity belonging to Hindu, Muslim, Christian or other religion. The explanation to “religious institution”, as defined under this Section, is temple, mosque, church or other place by whatever name known, which is dedicated to, or for the benefit of, or used as of right by any community or section thereof as a place of public religious worship (emphasis supplied).
15. In the present case, the properties in question are not dedicated and used as a place of public religious worship, whereas they are enjoyed by the appellant in her individual capacity. In addition, the very object of the Amendment Act is not only to protect the overall interests of any religious charity or religious institution belonging to Hindu, Muslim, Christian or other religion, but to deny the benefits to the tenants of the lands owned by such religious charity or institution, which cannot be defeated. In view of the said specific provision, the plea of the learned counsel for the appellant that the Official Trusts Act alone would apply to this case cannot be sustained.
16. Therefore, we see no reason to interfere with the order under challenge in this appeal. Accordingly, this O.S.A.is dismissed. No costs. Consequently, the connected M.P.No.1 or 2008 is also dismissed.
dixit