T. Mathivanan, J.@mdashThis regular appeal is preferred by the plaintiff, challenging the judgment and decree dated 27.10.2004 and made in
O.S. No. 10 of 1999 on the file of the learned Additional District Judge (FTC-II) Salem. The whole case hinges around Ex. A2, a registered
settlement deed dated 11.07.1975, in respect of the property measuring 0.78 cents. This property encompasses two compartments viz., (1) S.
No. 155/1, 0.60 cents (2) 155/2, 0.18 cents in total 0.78 cents and this is not in dispute.
2. For easy reference the character of the parties to the suit may remain as it is in the suit and need not be changed.
3. The plaintiff has filed the suit in O.S. No. 10 of 1999 seeking a judgment and decree:- a) declaring that the plaint scheduled property belongs to
them; b) restraining the defendants and their men by means of a permanent injunction from interfering with their peaceful possession and enjoyment
of the plaint schedule property; c) awarding costs of the suit.
4. In so far as the relief of permanent injunction relating to the prayer portion ""b"" is concerned, the suit is decreed by the trial court. But insofar as
the declaratory relief relating to the prayer portion ""a"" is concerned, the suit is dismissed. In short, the suit has been partly decreed and partly
dismissed. The plaintiff as against the judgment of dismissal in respect of prayer ""a"" portion has preferred the present appeal.
5. On the other hand the 4th defendant, challenging the judgment and decree in respect of prayer ""b"" portion which is decreed in favour of the
plaintiff has preferred the cross objection under Order 41 Rule 22 of the Code of Civil Procedure.
Facts in brief
6. The plaint schedule property was originally belonged to one Komaru Mudaliar son of Kanja Ekambara Mudaliar. He had executed a settlement
deed in favour of 23 persons who had constituted themselves a committee under the name and style of Tharamangalam Senguntha Mudaliyar
Kalyana Mandapam Kattum Nirvaga Committee for the purpose of constructing a Senguntha Mudaliyar Kalyana Mandapam at Tharamangalam
town.
7. The settlement deed dated 11.07.1975 (Ex. P2) is a registered document bearing Document No. 1333 of 1975. The then committee was not
registered and it was a group of individuals consisting of 23 members without any legal entity. Before the intention of the settlor could he fulfilled,
nearly 15 members had expired. Among those who are alive are; (1) P.V. Sellappa Mudaliar (2) V.A. Arumugha Mudaliar (3) P.V. Murugesa
Mudaliar (4) V.A. Kandasamy Mudaliar (5) T.M. Gopalrathina Mudaliar (6) N.A. Manicka Mudaliar (7) K. Muniappa Mudaliar (8) K.S.
Muthusamy Mudaliar, These, living eight members along with another 15 persons viz.,(1) T.K. Subramania Mudaliar (2) A. Kuppusamy (3) T.S.
Bhoopathi Raj an (4) K.E.A.S. Balakrishnan (5) T.K. Raja Muthaiah (6) S.P. Kandasamy Mudaliar (7) T.P.S. Amirthalingam (8) A.S.
Kandasamy Mudaliar (9) T.S. Arthanari Mudaliar (10) P.S. Vadivel Mudaliar (11) S.P. Subramania Mudaliar (12) K. Rangasamy (13) M.R.P.
Rangasamy (14) T.T. Vairavel (15) T.T.V. Alaguvel had formed themselves into an association under the name and style of Senguntha Mamannar
Ketti Mudaliar Thirumana Mandapam Karia Committee Sangam and registered as S. No. 181 of 1997 under the Tamil Nadu Societies
Registration Act for the purpose of putting up a Kalyana Mandapam in the property donated by the said Komaru Mudaliar. Ex. A3 is the certified
registration copy of the society.
8. After the registration of the settlement deed the patta which stood in the name of Komaru Mudaliar was transferred in the names of 23 persons
in whose favour the property stood settled and the kist was also being paid by the executive committee. Subsequent to the death of some of the
settlees, the 3rd defendant, The Tahsildar, Omalur had included a number of names who according to the plaintiff had neither title nor interest over
the property.
9. The plaintiffs wanted to put up the construction for which bhoomi pooja was decided to be performed on 04.06.1999. While so, a group of
persons allegedly instigated by the 4th defendant was trying to cause breach of peace by disturbing the possession of the plaintiff and therefore a
complaint was constrained to be lodged. The said complaint was referred to the second defendant, Revenue Divisional Officer, Mettur and he in
turn had initiated proceedings u/s 145 Cr.P.C., and in the meanwhile the action of the defendants had east a cloud over the title to the property of
the plaintiff and hence, it has become necessary for them to have their title to the property declared.
10. The written statement filed by the 3rd defendant was adopted by the defendants 1 and 2. They have contended that the properly to an extent
C.D.X.0.24.5 Hect. comprised in Survey No. 155/1 and to an extent of 0.07.5 Hect. comprised in Survey No. 1 55/2 in Tharamangalam Village,
Omalur Taluk stands registered in the name of 30 persons namely (1) T.K. Arunachalam (2) T.K. Duraisamy (3) Rathinasamy (4) Selvam (5)
Arunachalam (6) Periyasamy (7) Nanjappan (8) P.V. Sellappa Mudaliar (9) T.A. Arum ugh a Mudaliar (10) R. Subramania Mudaliar (11) T.V.
Murugesan (12) V.A. Kandasamy (13) A.S. Kandasamy (14) K. Marimuthu Mudaliar (15) S. Kandasamy Mudaliar (16) T.V. G opal (17)
Rathinam (18) M.P. Rangasamy (19) T.S. Arthanari (20) Vaiyapuri (21) Shanmugha Sundaram (22) Rathinavel (23) Thirunavukkarasu (24)
Sundaravadivel (25) Mamannar (26) Alaguvel (27) K.M. Annamalai Mudaliar (28) Mariappa Mudaliar (29) Muthusamy (30) T.P. Annamalai
Mudaliar.
11. Of above said 30 persons some of them are not the alleged committee members. At present as per the Revenue records, the suit property
stands in the name of 30 persons. At present as per Revenue Accounts, of the committee members alone are not having title over the property.
The plaintiff are not having absolute title over the suit property and hence they are not entitled to get the decree of declaration and permanent
injunction against the defendants 1 to 3. The plaintiffs have not presented any objection or appeal before the Revenue Authorities regarding the
Revenue Accounts, and as such they have not exhausted their remedies before the Revenue Authorities.
12. The 4th defendant in his written statement has contended that the person who has signed and verified the plaint by name T.K. Subramania
Mudaliar claiming to be the President of Sengunthar Mamannar Ketti Mudaliar Thirumana Mandapam Kariya Committee Sangam has no legal
authority to file the suit. The suit is not maintainable on the following three grounds;
1. This court has no jurisdiction to maintain the suit and grant the reliefs as prayed, for.
2. The plaintiff Sangam has no title, right, interest and possession over the suit property. Therefore, the suit is not maintainable.
3. The person Sri. T.K. Subramania Mudaliar has not been authorised to file the suit as per the bylaws of the plaintiff Sangam.
13. The settlement deed was executed only in favour of Tharamangalam Senguntha Mudaliar Kalyana Mandapam Kattum Nirvaga Committee, but
not in favour of any group of any group of persons. The intention of the Donor as per the recital of the registered settlement deed dated
11.07.1975, is that the said Kalyana Mandapam have to be constructed in the name of Tharamangalam Senguntha Mudaliar Kalyana Mandapam
Kattum Nirvaga Committee under the leadership of the Nattamaikarar of the Mudaliar Community.
14. The said committee is still in existence. The said Nattamaikarar N.A. Kandasamy Mudaliar was designated as president and the same is also
mentioned in the said settlement deed dated 11.07.1975. The 4th defendant has further contended that he is the son of the said Nattamaikarar
N.A. Kandasamy Mudaliar and that he had succeeded to the place of his father and now holding the office of Nattamai of Tharamangalam
Senguntha Mudaliar Community. Since, he is the eldest son of N.A. Kandasamy Mudaliar, as per the custom, and practice he has become the
Nattamai of Senguntha Mudaliar Community of Tharamangalam Village.
15. One P.S. Kandasamy Mudaliar who is the father of T.K. Subramania Mudaliar was the Vice-President of the said committee constituted by
the said Nattamai N.A. Kandasamy Mudaliar. Now the said P.S. Kandasamy Mudaliar had died but the post of the Vice-President cannot be
succeeded by the present plaintiff by name T.K. Subramani Mudaliar.
16. It is true that out of 23 persons, 15 persons were dead but the remaining 8 persons have no independent right to nominate T.K. Subramania
Mudaliar, A. Kuppusamy, T.S. Boopathirajan, Balakrishnan, Raja Muthaiah, S.P. Kandasamy, Amirthalingam, A.S. Kandasamy, T.S. Arthanari,
P.S.V. Vadivel, S.P.A. Subramaniam, K. Rangasamy, M.R.P. Rangasamy, T.T. Vairavel, T.T.V. Alaguvel as members of the association. The
said 8 persons are not entitled to include any new persons as the members of the committee mentioned in the settlement deed and also they are not
entitled to form the plaintiff sangam under the leadership of T.K. Subramania Mudaliar. The plaintiff Sangam cannot succeed to the suit property.
17. The settlor Komaru Mudaliar had handed over the possession of the suit property and authorised the nattamai of the community to construct a
Kalyana Mandapam on behalf of Tharamangalam Senguntha Mudaliar Community. As such only the community head and the present Nattamai,
namely, the 4th defendant alone is in possession and enjoyment of the suit property and he alone has the right to construct a Kalyana Mandapam
on behalf of the Senguntha Mudaliar Community of Tharamangalam Village.
18. He has also contended that his name also find a place in the Revenue records of the village in respect of the suit property and therefore, he is
having patta, chitta and adangal in his name in respect of the suit property. The plaintiff did not perform any bhoomi pooja on 04.06.1999 and he
has no authority to perform any pooja in the suit property. Since he (D4) has been in the absolute possession and enjoyment of the suit property,
there is no need for him to commit any breach of peace and to disturb anybody''s possession.
19. The members who are alive in the original committee are not entitled to amalgamate with the plaintiff''s sangam. The registration of plaintiff''s
sangam will not give any right, title or possession over the suit property to the plaintiff''s sangam. Since the (D4) is one of the beneficiaries in the
committee mentioned in the settlement deed, no injunction could be granted against him. The suit has not been properly valued in terms of court
fees and valuation.
20. Based on the pleadings of the parties to the suit as well as on the material proposition of facts the trial court has formulated as nearly as six
issues for the better adjudication of the suit. In order to establish their respective cases both the plaintiff and the defendants were directed to face
the trial.
21. Accordingly T.K. Subramania Mudaliar being the President of the plaintiff Sangam had examined himself as PW 1. One Kandasamy and
Sundaram were examined as PW 2 and PW3 respectively. During the course of their examination Exs. A1 to A17 were marked. On the other
hand one Periyasamy was examined as DW 1. The 4th defendant had examined himself as DW 2 and one Rajagopal was examined as DW 3.
During the course of their examination Exs. B1 to B11 were marked.
22. On appreciation of evidences both oral and documentary, the trial court while rejecting the claim of the 4th defendant has also rejected the
claim of the plaintiff in respect of declaratory relief. However, it has decreed the suit, granting the relief of permanent injunction after finding that the
suit property has been in possession and enjoyment of the plaintiffs sangam.
23. Being aggrieved by the dismissal of the suit in respect of the relief of declaration, the plaintiffs sangam has preferred this regular appeal. The 4th
defendant after challenging the judgment and decree in respect of permanent injunction, has preferred a cross objection under Order 41 Rule 22 of
C.P.C.
24. Based on the grounds of appeal as well as on the cross objection the following points are arisen for the consideration of this court;
1. Whether PW 1 Thiru. T.K. Subramania Mudaliar has no authority to file and maintain the suit against the defendants.
2. Is it correct to say that the trial court ought to have rejected the suit claim in limine as the statutory notice required u/s 80 C.P.C., has not been
sent to D1 to D3 ?
3. Is it correct to say that the living 11 persons out of 23 original members are entitled to co-opt other members of the committee which does not
require any specific order or provisions in the original settlement ?
4. Whether the selection of 23 persons from among Sengunthar Mudaliar Community will not alter the rights of the 23 persons, to administer the
management of the committee and carry out the wishes of the said settlor.
5. When the right of the management is given only to 23 persons without any reservation and restriction, is it correct to say that it is for the
committee to co-opt 23 persons or they themselves can manage the committee till the survival of the last person?
6. Is it right to say, that since the gift deed does not restrict the right of administration, the constitution or re-constitution of the committee cannot be
questioned by the 3rd parties even by the beneficiaries?
25. The learned counsel appearing for the 4th defendant who is the cross objector has argued that the plaintiff sangam had no title, right, interest
and possession over the suit property and that the suit therefore, was not maintainable. He has also adverted to that there was no dispute with
regard to the execution of settlement deed under Ex. A2 by the settlor Komaru Mudaliar. But the registered settlement deed was executed in
favour of the Tharamangalam Senguntha Mudaliar Kalyana Mandapam Kattum Nirvaga Committee, but not in favour of any group of persons as
alleged in paragraph No. 3 of the plaint.
26. The learned counsel has also maintained that in the year 1975, a committee under the name and style of Tharamangalam Senguntha Mudaliar
Kalyana Mandapam Kattum Nirvaga Committee, under the leadership of the then Nattamaikarar N.A. Kandasamy Mudaliar who is none other
than the father of the 4th defendant T.K. Arunachala Mudaliar was in existence and that, was why Komaru Mudaliar had executed a registered
settlement deed dated 11.07.1975 in favour of the said committee which was actually formed by the then Nattamaikarar N.A. Kandasamy
Mudaliar. He has added further that the said committee was still in existence and as such the plaintiff sangam had no locus standi to claim any right,
title and interest over the suit property.
27. He has also submitted that since the 4th defendant was the son of Nattamaikarar N.A. Kandasamy Mudaliar, the then president of the
committee he had succeeded to the place of his father and now holding the office of Nattamai of Senguntha Mudaliar Community at
Tharamangalam Village. He has also canvassed that the 4th defendant being the elder son of the Kandasamy Mudaliar as per the customs and
practice which was followed hereditarily, he had become the Nattamai of Senguntha Mudaliar Community at Tharamangalam Village and this
could not be invoked in the case of PW 1, T.K. Subramania Mudaliar, who had now been representing the plaintiff''s sangam. In this connection
he has also submitted that Mr. T.K. Subramania Mudaliar, who had signed and verified the plaint was the son of P.S. Kandasamy Mudaliar who
was the vice-president of the said committee constituted by the said Nattamaikarar N.A. Kandasamy Mudaliar, and that the said P.S. Kandasamy
Mudaliar had passed away but the post of the vice-president could not be succeeded by the plaintiff by name Subramania Mudaliar.
28. It is to be remembered that the learned counsel for the 4th defendant has argued that the settlement deed was executed in favour of the
Tharamangalam Senguntha Mudaliyar Kalyana Mandapam Kattum Nirvaga Committee, but not in favour of any group of persons. His arguments
appears to be contrary to the recitals of Ex. A2 wherein the settlor has specifically stated, that the settlement is executed in favour of the 23
members of the Committee.
29. Keeping in view of this portion of the arguments advanced by the learned counsel appearing for the 4th defendant, now this court finds that for
the determination of this appeal, the discussion in respect of points 3 to 5 is very much essential.
Points- 3 to 5:
30. As observed herein above, Ex. A2 deed of settlement was executed on 11.07.1975. A mission, which was entrusted with Tharamangalam
Senguntha Mudaliar Kalyana Mandapam Kattum Nirvaka Committee was, to construct a common marriage hail in Tharamangalam and only for
this purpose, the land was donated to the members of the Committee through this settlement deed.
31. It is apparent from the face of Ex. A2 that as on 11.07.1975, the said committee viz., Tharamangalam Senguntha Mudaliar Kalyana
Mandapam Kattum Nirvaka Committee was in existence. It is absolutely not correct to say that the land measuring 78 Cents was donated to the
Committee. But strictly speaking the settlement deed was executed in favour of 23 members, who had constituted that committee.
32. The President, Vice-President, Secretary, Deputy Secretary and the members have been described in the said deed as ""for the present"" or
temporarily"" viz., in Tamil as Tharkala. The very language employed by the settlor in Ex. A2, (deed of settlement), explains that neither the office
bearers nor the members of the said committee are permanent so that the settlor has carefully employed the word as ''Tharkala''.
33. It may also be relevant to produce the verbation of words from Ex. A2:
34. From the above context, it could be easily understood that the settlor Mr. Komaru Mudaliar had executed the settlement deed in favour of the
office bearers, and members of the Tharamangalam Senguntha Mudaliar Kalyana Mandapam Kattum Nirvaka Committee.
35. On perusal of the averments of Ex. A2, it is revealed that no tenure of office for the office bearers as well as the members of the said
committee has been stipulated. There is also no restriction for deletion or addition.
36. From the averments of Ex. A2, it cannot be Construed that the existing members are not empowered to include any new member in case
anyone of the original member happens to die.
37. It may also be relevant to extract the following portion from Ex. A2:
38. It appears from the above context that the possession of the land was also handed over to the members of the committee on the date of
execution of the settlement. As observed earlier, the settlement deed was executed on 11.07.1985. At the time of execution of the settlement, the
nomenclature of the executive committee was Tharamangalam Senguntha Mudaliar Kalyana Mandapam Kattum Nirvaka Committee. It was not
registered at the time of its formation. Though the property was donated for the purpose of putting up of a common marriage hall, the marriage hall
was not immediately put up.
39. During the transition of time, 15 members had passed away. Only the following eight members are alive. They are:
i. Mr. P.V. Chellappa Mudaliar,
ii. Mr. V. Arumuga Mudaliar,
iii. Mr. P.V. Murugesa Mudaliar,
iv. Mr. V.A. Kandasamy Mudaliar,
v. Mr. T.M. Gopalakrishna Mudaliar,
vi. Mr. N.A. Manikka Mudaliar,
vii. Mr. K. Muniappa Mudaliar, and
viii. Mr. K.S. Muthusami Mudaliar.
40. It is also pertinent to note here that no steps had been taken by the executive committee to fulfill the intention of the settlor. However, the
existing original eight members had inducted another new fifteen members to bring it to the original strength of 23 members. Thereafter, they had
constituted a new society under the name and style of Sengunthar Mamannar Ketti Mudaliar Thirumana Mandapam Karia Committee Sangam. As
evident from Ex. A3, Certificate of Registration of Societies, the Society was registered on 23.05.1997 under S. No. 181 of 1997.
41. It may also be relevant to note here that till the formation of new committee i.e., till 23.05.1997, the marriage hall was not constructed.
42. P.W. 1, Mr. T.K. Subramania Mudaliar was examined as P.W. 1 on 18.07.2003. As on 18.07.2003, 28 years had been passed. It is surprise
to note that the living persons gathered and decided to form a committee to fulfill the intention of the Donor only after 28 years along with 15 new
members.
43. Ex. A5 is the rules, regulations and purpose of the society. The tenure of committee members as well as the office bearers have been stipulated
in Ex. A4, Besides this, the duty and liability of the president, secretary and treasurers have also been carved out in Ex. A4.
44. P.W. 1 says that after execution of the settlement deed in the year 1975, patta, which originally stood in the name of the settlor Mr. Komaru
Mudaliar was transferred in the name of the original 23 members. In order to substantiate this fact, Exs. A5 and A6 kist receipts have been
marked through P.W. 1.
45. Ex. A5 series and Ex. A6 stand in the name of Mr. P.V. Chellappa Mudaliar, who was the then secretary of the executive committee. Ex. A5
series and Ex. A6 have reference about the kalyana mandapam. Ex. A7 is the encumbrance certificate. From the entries made in serial No. 3 of
this document under column Nos. 3,4,5 and 6, it is revealed that on 11.07.1975 Mr. Komaru Mudaliar had executed the settlement deed in favour
of Tharamangalam Senguntha Mudaliar Kalyana Mandapam Kattum Nirvaka Committee for the purpose of construction of Tharamangalam
Senguntha Mudaliar Kalyana Mandapam.
46. It also appears from the averments of the plaint as well as from the evidence of P.W. 1 that for the purpose of construction of the marriage hall,
bhoomi pooja was decided to be performed on 04.06.1999. Whileso, the fourth defendant and his men had trespassed into the suit property and
removed the name board and tried to cause breach for disturbing the possession of the plaintiffs.
47. It also appears that a complaint was lodged before the Inspector of Police attached to Tharamangalam Police Station and based on the
complaint a case in Crime No. 249 of 1997 was registered on 01.06.1997 u/s 145 Cr.P.C.
48. It is revealed from Ex. A8 series that a proceedings u/s 145 Cr.P.C., was initiated and both the parties were called to attend an enquiry with
regard to their respective claims in respect of the suit property. They were also directed not to enter the property until further orders.
49. When the matter stood thus, the fourth defendant has claimed that the plaintiffs'' society had no loco standi to claim right over the suit property
measuring 78 cents, comprised in Survey Nos. 155/1 and 155/2 at Tharamangalam Village and that the committee called Tharamangalam
Senguntha Mudhaliar Kalyana Mandapam Kattum Nirvaka Committee under his leadership being the Nattamai of the Mudaliar Committee was
still in existence and as such the plaintiffs'' society could not claim exclusive right over the suit property.
50. He has also submitted that now the committee was consisting of 30 members and patta had also been issued in favour.
51. In this connection P.W. 1 has deposed that with the connivance of the revenue officials, the fourth defendant has transferred the patta in the
name of 30 persons, which originally stood in the name of 23 members.
52. In order to substantiate this fact, Ex. A9 Chitta and Ex. A10 Adangal have been marked through P.W. 1. Ex. A9 is the Chitta, wherein the
names of 30 members have been specified and it is also revealed as if the property comprised in Survey Nos. 155/1 and 155/2 stands in the name
of the above said 30 members. From Ex. A9 Chitta, this Court finds that no reference is available to show the nomenclature of the committee.
53. Ex. A10 is the Adangal and it is also revealed that the property comprised in Survey Nos. 155/1 and 155/2 stands in the name of D4, Mr.
T.K. Arunachalam and others. However, this Court finds that Exs. A9 and A10 will not give any exclusive right to the above said 30 members
headed by the fourth defendant.
54. One Mr. Kandasamy Mudaliar has been examined as P.W. 1. He has ratified the fact that Ex. A2 settlement deed was executed in favour of
23 members, who had constituted Tharamangalam Senguntha Mudaliar Kalyana Mandapam Kattum Nirvaka Committee. He has also deposed
that he was the eighth person among 23 members. He has also deposed that though the settlement deed was executed in the year 1975, for the
past 20 years no steps were taken and out of 23 members, 12 members had been passed away and the remaining living persons had assembled
and decided to put up the marriage hall after inclusion of new 11 members in lieu of demised persons.
55. He would state further that one Mamannar Ketti Mudaliar had constructed the Kailasa Nathar Temple and therefore in commemoration of his
name the new committee has been formed and christened as Senguntha Mamannar Ketti Mudaliar Thirumana Mandapam Committee Society. He
has also deposed that for the new committee, P.W. 1 had been nominated as president. But, from the patta issued by the Tahsildar, he came to
know that the names of 30 members had been included and out of the said 30 members, 16 members were the original members, whose names
were found place in the kalyana mandapam committee and that the remaining 14 members were included by the fourth defendant.
56. He has also stated that all the members had resolved and authorised P.W. 1 to verify and file the plaint on behalf of the new committee.
57. The learned counsel appearing for the plaintiffs, while advancing his arguments, has made reference to Ex. A17, wherein the fourth defendant
has stated that he was not going to participate in the affairs of the committee. The learned counsel has also pointed out that the fourth defendant
had no right over the suit property and that once the gift was given under Ex. A2, always it was given in favour of the members of the committee
for the construction of a public marriage hall. He has also submitted that the fourth defendant, who was totally a stranger to the property as well as
to the plaintiffs'' society could not claim exclusive right over the suit property, much less right of succession following his father, who was the then
president of the executive committee.
58. In support of his contention, he has placed reliance upon the decision reported in Raja Birakishore Vs. The State of Orissa, . This appeal, on a
certificate granted by the Orissa High Court, has raised the question of constitutionality of the Shri Jagannath Temple Act, 1954, 2 of 1955. The
challenge to the Act was made by the father of the appellant by a writ petition filed before the High Court of Orissa. The appellant was substituted
for his father on the death of the latter while the writ petition was pending in the High Court. The case put forward in the writ petition firstly was
that the Shri Jagannath Temple was the private property of the petitioner, Raja of Puri and the Act, which deprived the appellant of his property
was unconstitutional in view of Article 19 of the Constitution.
59. In the alternative it was submitted that the appellant had the sole right of superintendence and management of the Temple and that right could
not be taken away without payment of compensation and the Act inasmuch as it took away that right without any compensation was hit by Article
31 of the Constitution.
60. After hearing both sides, the Apex Court has held that no person, who does not profess the Hindu religion shall be eligible for membership.
Besides providing for some ex officio members, the other members of the Committee are all nominated by the State Government, one from among
the persons entitled to sit on the mukti-mandap, three from among the sevaks of the Temple recorded as such in the record-of-rights, and seven
from among those who do not belong to the above two classes. The Collector of the District of Pari is an ex officio member and it is designated as
he is the vice-chairman of the Committee.
61. It has also been concluded in the above cited case that the temple was meant for all hindus, even if all Hindus were treated as a denomination
for purposes of Article 26, the management still remains with Hindus, for the Committee of management consists entirely of Hindus, even though a
nominated committee. In view of the defective state of pleadings however we are not prepared to allow the argument under Article 26(d) to be
raised before us and must reject it on the sole ground that no such contention was properly raised in the High Court. Ultimately, the appeal was
dismissed.
62. Mr. R. Singaravelan, learned counsel appearing for Mr. N.S. Sivakumar learned counsel, who is on record for the fourth respondent has
submitted that an attempt was made by the plaintiffs to convert the property into their personal property and that few persons with the connivance
of P.W. 1 wanted to do this. He has also urged that Ex. A2 settlement deed had referred to the term ""executive committee"" and that the property,
which was donated under Ex. A2 for a public purpose.
63. He would further submit that Ex. A4 was the attested xerox copy of the rules and regulations of the plaintiffs'' society called Sengunthar
Mamannar Ketti Mudaliar Thirumana Karia Committee Sangam. It appears that under Form-I, P.W. 1 being the president of the committee had
sent the rules and regulations of the society along with the registration fee to the Registrar of the Societies District Registration Office, Salem.
64. Clause 3(i) of Ex. A4 describes about the administrator of the society. It says that the committee will consist one president, four vice-
presidents, one secretary, two assistant secretaries, one cashier, one assistant cashier and 13 members, in total there will be 23 members. Clause
3(ii) of Ex. A4 resides that the tenure of the committee is three years. It also stipulates certain conditions and qualifications for a member to be
included in the said suit.
65. He has also submitted that the tenure of the society is three years and that even though the society was registered on 01.03.1997, no election
was held to select new administrator for the committee and on this ground also P.W. 1 was not competent to represent the plaintiffs'' society.
66. Mr. R. Singaravelan, learned counsel appearing for the 4th defendant while advancing his arguments has made reference to Section 15 of
Societies Registration Act 1860. He would submit that in so far as the plaintiff society is concerned, no account was maintained in the name of the
plaintiff society and no balance was available for the construction of the marriage hall to fulfill the intention of the settlor and that the Ex. A4, Rules
and Regulations and other materials did not have any reference to show that the members had subscription for the society.
67. Considering this portion of argument, it has become imperative on the part of this court to extract the proviso to Section 15 of the Societies
Registration Act 1860;
Section 15 Member defined. Disqualified members.- For the purposes of this Act a member of a society shall be a person who, having been
admitted therein according to the rules and regulations thereof, shall have paid a subscription, or shall have signed the roll or list of members
thereof, and shall not have resigned in accordance with such rules and regulations; but in all proceedings under this Act no person shall be entitled
to vote or be counted as a member whose subscription at the time shall have been in arrears for a period exceeding three months.
68. In this regard it may be more relevant to refer the decision in Periyar Self-Respect Propaganda Institution, Trichy and Others Vs. State of
Tamil Nadu and Others, In this case this court has held that;
By putting an end to the life membership or life offices, there is no putting an end to the right to form an association as such. The holding of an
office for a particular tenure or for that matter for life is a matter of internal arrangement amongst members constituting the Institution or the
Charitable Society arid certainly it cannot assume the colour of a fundamental right. Neither the Institution nor the Charitable Society, or the
present incumbents of the life offices could claim that they could form associations only with the life offices engrafted in the rules, or if they had
already formed, they must be allowed to continue to have that set up and'' any disturbance thereof would amount to violation of the right to form an
association guaranteed under Art. 19(1)(c). If at all, such a right could be characterized as a peripheral or concomitant right which may facilitate
the fulfillment of the objectives of the founders of the Institution and the Charitable Society. But, there is no constitutional guarantee that every
association formed shall effectively achieve its objectives without interference by law. Neither the members nor the association of members could
claim that they have a fundamental right to have office for life.
69. The learned counsel Mr. R. Singaravelan has also adverted to that the suit in respect of the declaratory relief was dismissed by the trial court
and that the 4th defendant has challenged in his cross objection only against the granting of permanent injunction assuming that the possession of
the suit property had been within his possession.
70. On the other hand the learned counsel for the plaintiff has submitted that the registration of the committee had no relevancy in this case and that
the Constitution of the committee under the name and style of Senguntha Mamannar Ketti Mudaliar Thirumana Mandapam Karia Committee
Sangam, was only for the public purpose and no individual could claim exclusive right. He has also submitted that no relief is claimed as against the
defendants 1 to 3 who are representing the Government. Besides this he has also argued that since some of the members of the original committee
who were alive had amalgamated with the present association and the same had been registered under the Societies Registration Act and that the
members of the plaintiff sangam were the only persons entitled to the property and therefore, it had become necessary to safeguard the right of the
members over the properly and the same to be declared by some competent Court of law and in consequent thereof to restrain the defendant and
their mens by means of permanent injunction in respect of the peaceful possession and enjoyment of the suit property by the plaintiffs.
71. Insofar as the plaintiff''s arguments is concerned, it is to cursed mainly on to the dismissal of the suit in respect of the declaratory relief. It may
be relevant to note here that though the suit property was settled in favour of 23 members of the committee no independent and exclusive right was
given to them under Ex. A2. The recital of Ex. A2 have been fully admitted by D4 in his evidence. It is also significant to note here that on perusal
of Ex. A2 it is thus clear that it does not have any restriction to change the nomenclature of the committee in accordance with the changing
circumstances and that the existing members are also not restricted from including new members to the committee in the place of the demised
original members.
72. As it appears from the evidence of PW 1 and 2, that after the death of more than 15 members, for the purpose of providing benefit to the
Tharamangalam Senguntha Committee people and in accordance with their wishes, the new society has been formed.
73. The trial court has also found that the 4th defendant has not produced any documentary evidence to show that he was nominated for the post
as President of the Society by the village people. Having found that the 4th defendant who is the only person objecting the claim of the plaintiff, it is
surprise to note that the trial court had found that the plaintiff society is not entitled to the relief of declaration.
74. Since the 4th defendant has claimed that the society under the name and style of Tharamangalam Senguntha Mamannar Kalyana Mandapam
Kattum Nirvaga Committee had been functioning under his head and that the society under his head is consisting of 30 members, it is imperative on
the part of this court to make a comparative study of Exs. A3, A4 to A7, A9 to A11. A17 and Exs. B10 & B11.
75. As discussed in the foregoing paragraphs Ex. P3 is the certificate of registration in Survey No. 181/1997 in respect of the plaintiff society
under the name and style of Senguntha Mamannar Ketti Mudaliar Thirumana Mandapam Karia Committee Sangam, This society has been
registered on 23.05.1997.
76. Ex. A4 is the rules and regulations of the plaintiff society and Ex. 5 and 6 are the kists receipts in the mane of Chellappa Mudaliar, the then
secretary of the Society. Ex. A9 is the chitta which contains the names of the 30 persons of whom D4''s name has been mentioned at first.
77. In this connection it was argued that on behalf of the 4th defendant that patta was issued in the name of 30 persons under Ex. A4 and the
Revenue records under Ex. A9 and A10 would go to show that D4 is in exclusive possession of the suit property. Ex. B10 is the certification of
the registration of the society in respect of the society called Tharamangalam Senguntha Mudaliar Kalyana Mandapam Kattum Nirvaga Committee
in Serial No. 201/97 which appears to have been registered on 24.06.1997 i.e., one month after the registration of the plaintiff society. It appears
that the society under the name of the Tharamangalam Senguntha Mudaliyar Tirumana Karia Committee Sangam seems to have been registered as
rival to the plaintiff society. Ex. B11 is the rules and regulations of the committee headed by D4. It contains the names of 23 persons. The list of
persons annexed with Ex. B11 are entirely contrary to the list of persons contained in Ex. A9 Chitta. When the fourth defendant''s society consists
of 23 members how the patta and chitta could have been issued in favour of 30 persons.
78. This court has carefully perused the testimonies of PW 1 to PW 3 as well as DW 1 to DW 3 and has also carefully appreciated the
documentary evidences ranging from Al to A17 and B1 to B11. Having given its careful consideration, this court finds that much weight could not
be attached to Exs. A9, A10, B10 and B11. As observed hereinbefore that Ex. A10 seems to have been registered to form a rival society to the
plaintiff society.
79. Having regard to the above findings, the considered view of this court is;
Firstly, living 11 persons out of 23 original members are entitled to co-opt other members of the committee as per Ex. A11, which does not
require any specific order or provisions in the original settlement.
Secondly, the selection of 23 persons from among Sengunthar Mudaliar Community will not alter the rights of the 23 persons, to administer the
management of the committee and carry on the wishes of the said settlor late Komara Mudaliar. Thirdly, the right of the management is given only
to 23 persons without any reservation and restriction, and therefore, it is for the committee to co-opt 23 persons.
80. Point No. 1 It is manifested from Ex. A11 that as per the resolution passed by the committee dated 23.06.1997, PW 1 Thiru T.K.
Subramania Mudaliar has been authorised to file and maintain the suit on behalf of the committee. This fact has also been ratified by PW 1 and PW
2. It is more important to note here that PW 2 Kandasamy Mudaliar was aged about 80 years. At the time of giving his evidence i.e., on
05.09.2003, he has stated that his only intention was to form a society under the name and style of Senguntha Mamannar Ketti Mudaliar
Thirumana Mandapam Karia Committee Sangam. He has also stated that if any member had passed away, his legal heirs or legal representatives
could not claim any right over the society much less any right of succession. He has also admitted that PW 1 is the President of the plaintiff society
and he has been authorised to file and to maintain the suit. His evidence in chief stood the test of cross-examination.
81. Point No. 2 It is obvious to note here that no relief is sought for as against the defendants 1 to 3, The defendants 1 to 3 have spoken to about
the issuance of Ex. A9 and A10 as well as the proceedings u/s 145 Cr.P.C. in respect of the suit property. It is also brought to the notice of this
court through the written statement of D4 that the proceedings u/s 145 Cr.P.C., was not at all pending and that the same was closed on the file of
the second defendant. It is also relevant to note here that the defendants 1 to 3 were not served with statutory notice as required u/s 80 C.P.C.
Since the 4th defendant has not raised this plea in his written statement, it is no open for him to come forward with a new set of plea saying that the
suit ought to have been rejected for non-issuance of statutory notice to the defendants 1 to 3.
82. On verification of the records, this court is not able to find any reference to show that this plea was taken either by the 4th defendant or on his
behalf before the trial court. Since the defendants 1 to 3 have not raised any objection, it cannot be considered at this point of time that too, in the
appeal stage that no prejudice could be caused to the defendants 1 to 3, by the judgment of the trial court as well as by the judgment of this court.
Hence issue number 2 has also been found against the 4th defendant.
83. This court has carefully considered the submissions made on behalf of both sides. This court has also appreciated the evidences both oral and
documentary. Having been considered the testimonies of the witnesses examined on behalf of both sides and on appreciation of the documentary
evidence, this court finds that the trial court is absolutely wrong in dismissing the suit with the finding that the plaintiff society is not entitled to the
relief of declaration in respect of the suit property.
84. Point No. 6 Based on the discussion made in point Nos. 1 to 5, it is absolutely right to say that since the gift deed under Ex. P2 does not
restrict the right of administration, constitution or reconstitution of the committee, it cannot be questioned either by the 3rd parties or by the
beneficiaries or much less by the 4th defendant as no provision is available in the gift deed.
85. Keeping in view of this fact this court finds that the judgment of dismissal by the trial court in respect of the prayer portion ""a"" is liable to be set
aside and the granting of permanent injunction in respect of the prayer portion ""b"" is liable to be upheld.
86. In the result the appeal is allowed with cost.
The judgment of dismissal of the suit with regard to declaratory relief is set aside and the suit is decreed with regard to the relief of declaration
declaring that the plaintiff schedule property is belonged to the plaintiffs society.
The cross objection filed by the 4th defendant is dismissed without cost by upholding the judgment and decree of the trial court with regard to the
granting of permanent injunction as against the defendants.
