S. Jagadeesan, J.@mdashFor easy reference, the parties are mentioned as stated in the plaint. The defendants 1 to 3 in O.S.1254/94 on the file of the Sub-Court, Tiruchi are the appellants herein, The first respondent herein filed the said suit against the appellants and 13 others who are the respondents 2 to 14 herein. The suit has been filed for declaration of title of the plaintiff in respect of the suit property and for permanent injunction restraining the defendants therein from interfering with the right of management of the plaintiff over the suit property and for rendition of accounts.
2. The case of the plaintiff is that it is a registered society and is functioning from the year 1942. It was founded by late Swamy Chidbavananda who attained Maha Samadhi in the year 1985. He was propagating the ideals of late Swamy Ramakrishna and Swamy Vivekananda. Initially, he was functioning at Ooty and later shifted to Thiruparaithurai. Number of branches were established by him in various places viz., Thiruvedagam, Courtallam, Chitraichavadi, Thirunelveli, Kodaikanal, Ramanathapuram, Rameswaram, Salem and Karur. Almost in all the places, he has established the educational institutions and ashrams as well as dispensaries to help the poor. Swami Chidbavananda, during his life time had acquired various properties by collecting funds from the public. The suit properties have acquired the character of Trust property.
3. The first defendant in the suit was an employee in a Mill at Coimbatore who left his job and moved to Thiruparaithurai in 1962 as a disciple of late Swami Chidbavananda. He joined as an ordinary member and subsequently he was taken as a Brahmachari. In 1970, he became a sanyasi. On his attaining sanyasasram he was assigned job at Thiruvedagam and later transferred to Karur in 1976.
4. The plaintiff-society established a number of educational institutions at Karur with the donations collected from the public and also with the funds available through the trusts called Vairaperumal Trust and Tathinagireeswarar Trust. The object of the above two trusts was to dedicate their properties to the plaintiff society to enable them to put up educational institutions at Pasupathipalayam, Karur. An extent of 10.68 acres was taken on lease by the plaintiff society from one Ramalingam Chettiar in August, 1976 and a primary school was started. Subsequently Vivekananda Higher Secondary School, Vivekananda Matriculation Higher Secondary School, Vivekananda Elementary School, Vivekananda Primary School and Saradha Girls Higher Secondary School were started. The plaintiff Society is the educational agency in respect of these institutions. The management was carried on by passing the resolutions by the plaintiff Society for which the first defendant is also a party. The first defendant had acquiesced in the ownership of the plaintiff with regard to all these institutions and the right of the plaintiff as the Educational Agency of all the institutions. The expenses for the institutions had been met from out of the funds of the plaintiff society. The plaintiff society got a lease of 247.95 acres of land from one Paranjothi Ammal and Periya Nachammal wherein Sri Sarada Niketan Arts and Science College of Women was constructed. The first defendant is only an agent representing the plaintiff at Karur, discharging his functions as Secretary and Correspondent. He has to carry out the instructions given by the plaintiff society and he has no independent role to play. On 1.10.84, he was transferred to Thiruvedagam from Karur which fact was also informed to all the educational authorities. Subsequently the first respondent was again transferred to Karur in November, 1984.
5. In August 1990, when the first defendant involved in some controversies leading to publication in the newspaper, he was advised to go to a pilgrimage and the first defendant also agreed. But, however, subsequently he changed his mind and refused. Thereupon certain charges were framed against the first defendant. He was transferred from Karur in October, 1990. He refused to obey the orders of the plaintiff society.
6. The first defendant registered a Trust known as Sri Ramakrishna Ashramam Trust in May 1987, making misrepresentation and induced Swami Guhanand and Swami Amalananda to participate in the functions of the Trust. When he was transferred from Karur, he tried to set up title in himself as if Sri Ramakrishna Ashramam trust is an independent existence formed by him and it has nothing to do with the plaintiff society. He also set up a claim in respect of all the institutions stating that the institutions at Karur had been founded by him from out of his own money and the funds collected by him individually.
7. The first defendant filed a suit O.S.251/91 on the file of Sub-Court, Karur for declaration that the plaintiffs therein are the owners as well as the founders of the Educational Agencies of the six educational institutions mentioned in the plaint. Subsequently O.S.251/91 was dismissed as withdrawn. The first defendant also filed another suit O.S.1368/90 on the file of the District Munsif Court at Karur which was subsequently transferred to the Sub-Court, Karur and numbered as O.S.459/91 and taken up for trial wherein the subject-matter of the suit are the two educational institutions viz., Sri Vivekananda Higher Secondary School for boys and Sri Sarada Girls and Higher Secondary School at Pasupathipalayam. In the said suit, the right of the plaintiff as the educational agency had been conceded. After full-fledged trial, the suit O.S.459/91 was dismissed on 30.4.92, upholding the claim of the plaintiff herein that the institutions are belonging to the plaintiff society herein. However, the learned Subordinate Judge directed the parties to amicably settle the matter, considering the relationship of the parties and the character of the institutions of the plaintiff and permitted the first defendant herein to be in management of the said schools. Taking advantage of the same, the first defendant started to collect the funds and acted detrimental to the interest of the plaintiff society. The assignment deeds obtained by the first defendant dated 22.5.87 and 15.7.89 are invalid. Moreover, the same are unregistered documents executed by the persons who have no authority to do so. Hence such assignments are not binding on the plaintiff. In the earlier suit filed by the first defendant, the validity of such assignment also considered and a finding has been given against the first defendant. As per the regulations of the plaintiff society, once an individual obtained sanyasam he cannot own any property in his name. Even assuming the first defendant owns any property he is not deriving any income from out of the same to establish the suit institutions. The institutions have been established only by the plaintiff society and the first defendant has collected the donations only in the name of the plaintiff and spent on the establishment of the institutions and as such it is not open to him to claim any exclusive right over those institutions. The first defendant as well as the second defendant are acting only in a fiduciary capacity on behalf of the plaintiff and as such the plaint ''B'' schedule property purchased by the first defendant is only from out of the funds of the plaintiff society. The first defendant prior to the filing of the suit had made some representation to the educational authorities and has transferred the name of the educational agency from the plaintiff to that of the second defendant. The second and third defendants are only the wings of the plaintiff and they have no independent existence and hence even though the educational agency has been transferred in the name of the second defendant, the same had never been acted upon. The first defendant is liable to account for the collections made in the name of the plaintiff. Even though in the earlier suit filed by the first defendant there is a direction to compromise the matter, the plaintiff tried their best to settle the dispute. But however, the first defendant did not agree for any amicable terms; especially by claiming independent right and title over certain institutions belonging to the plaintiff. Hence the present suit has been filed.
8. The claim of the plaintiff was contested by the first defendant by filing the written statement which was adopted by the defendants 2 to 8, 10, 12, 15 and 16. In the written statement it is stated that the plaintiff is a registered society came into existence in 1942. The same was formed by late Swamy Chidbavananda who attained Mahasamadhi in 1985 who was propagating the ideals of Swarm Ramakrishna and Swami Vivekananda. The first defendant is also a disciple of late Swami Chidbavananda. A number of devotees who joined with late Swami Chidbavananda had established branches in number of places. Swami Chidbavananda did not establish any institution at Karur. The origin of the plaintiff is only in the nature of Trust and even today it continues the character of a Trust. Swami Chidbavananda, by his eminence and influence, acquired number of properties and gathered funds for the purpose of Trust. However, he never acquired any property at Karur for the purpose of the plaintiff. Only on the instructions of late Swami Chidbavananda, the first defendant came to Pasupathipalayam, Karur in 1976 and established the second defendant ashram. The second defendant ashram is a separate entity which has nothing to do with the plaintiff. The educational institutions were not formed by the plaintiff and that too with the donations collected by them and with the funds available by way of Vairaperumal Trust and Tothinagireeswarar Trust. The institutions have been established only by the first defendant exclusively from out of the funds of the second defendant and the donations from the devotees of the second defendant as well as from the general public. The first defendant is the correspondent and secretary of the educational institutions ever since they were established. Vivekananda Higher Secondary School for boys was established by the first defendant in 1981 and in 1986 Sri Saradha Girls Higher Secondary School was established. Sri Vivekananda Primary School was established in 1977 and Vivekananda English School and Vivekananda Matriculation Higher Secondary School were established in the year 1980 and 1984 respectively. The second defendant ashram was constructed by the first defendant exclusively for the second defendant over which the plaintiff have no right or claim.
9. The land comprised in Item No. 1 of ''A'' schedule property was taken on lease by the plaintiff in August, 1976 from one Rajalingam Chettiar. This lease was taken for the benefit of the second defendant which would be very clear from the recitals of the said lease deed. The said lease was assigned in July 1989 in favour of the second defendant by the competent persons of the plaintiff and as such this would establish that the original lease taken by the plaintiff is only for the benefit of the second defendant. The plaintiff had been described as the educational agency in all the institutions. It has been so described only at the instance of the first defendant and the first defendant has done out of reverence he had for late Swamy Chidbavananda. The question of acquiescence by the first defendant because of his participation in the resolution do not arise. The land comprised in Item No. 2 of plaint ''A'' schedule property was taken on lease by the plaintiff in August, 1986 which was also only for the benefit of the second defendant and this fact will be clear from the assignment made by the plaintiff in favour of the second defendant on 22.5.87. Sarada Nikethan College of Science for women was established by the first defendant exclusively for the second defendant in Item 2 of the plaint ''A'' schedule property from out of the exclusive funds owned by the second defendant. There is absolutely no contribution from the plaintiff towards the establishment of these institutions. The first defendant never functioned as the agent of the plaintiff and discharging his functions as the Secretary and Correspondent on behalf of the plaintiff. The first defendant was functioning only as the Managing Trustee of the second defendant- In the written statement, the first defendant has denied the averments made in the plaint with regard to the conduct of the first defendant engaging himself in some controversies. The trust deed dated 19.5.87 in respect of the second defendant is a valid document. The suit O.S.251/91 on the file of the Sub Court, Karur was withdrawn as the first defendant thought that he would be able to get the relief in the earlier suit O.S.1368/90 on the file of the District Munsif Court, Karur which was subsequently transferred to Sub-Court, Karur as O.S.459/91. Even though the second defendant came into existence in the year 1976, the deed of trust was registered only in May, 1987. The suit O.S.459/91 was dismissed by the trial Court with a direction directing the parties to try to solve their disputes within a period of six months in order to have smooth transition of the responsibility. The appeal preferred by the firs; defendant in A.S.282/92 was dismissed by the District Court in February, 1993. The cross-objections filed by the plaintiff against the direction granted by the trial court was however, allowed. The first defendant preferred Second Appeal S.A.604/93 and the same is pending adjudication and hence the entire matter is sub judice. When the subject matter of the Second Appeal is the dispute between the parties, till the Second Appeal is over, the rights of the parties need not be decided in this suit. The third defendant was also formed by the first defendant in his individual capacity and that has nothing to do with the plaintiff. The funds were collected in the name of the third defendant and were utilized for the establishment of the third defendant. The ''B'' schedule property belong to the trust in whoso name they stand and the plaintiff has no right over the same. The second and third defendants are not the wings of the plaintiff and they are independent of their own. The suit is liable to be dismissed u/s 35-A of C.P.C.
10. On the basis of the above pleadings, the following issues and an additional were framed:
(1) Whether the plaintiff is entitled for declaration and possession as prayed for?
(2) Whether plaintiff is entitled for an injunction and as against the 1st defendant from projecting himself as the Secretary or Correspondent?
(3) Whether the plaintiff is entitled for accounting relief?
(4) Whether the assignment deeds dated 22.5.1987 and 15.7.1989 are enforceable against the plaintiff?
(5) Whether the plaintiff is the owner of the "B'' schedule properties and any other properties acquired by the 1st defendant?
(6) To what relief?
Additional Issue:
Whether the suit claim has been valued property and whether correct court fee has been paid on the plaintiff?
11. After considering the entire oral as well as documentary evidence, the trial Court by its judgment and decree dated 7.8.98 has decreed the suit as prayed for. Aggrieved by the same, the present appeal has been filed.
12. The learned counsel for the appellants contended that the trial Court decreed the suit mainly on the ground of res judicata finding that the first defendant is only an agent of the plaintiff as found in the earlier suit and as such he cannot have the individual identity to own the property. The properties which are the subject-matter of the earlier suit and the present suit are different and the issues framed in the earlier suit and the present suit are not identical and as such the findings of the court below with regard to the issue of res judicata is not correct. When the plaintiff has filed the suit for declaration of their title, it is for them to establish the same by independent evidence and in the absence of any document to establish the title of the plaintiffs, the trial Court ought to have dismissed the suit. The suit filed by the plaintiff is barred under Sections 53 and 53-A of the Tamil Nadu Private Schools Regulations Act. When the plaintiff claims that the plaintiff is a trust, the suit is not maintainable as all the trustees did not join together as contemplated under Order 31, Rule 2 C.P.C. When the plaintiff is a society registered under the Societies Registration Act, the suit filed by them as claiming to be the trust cannot be maintained. As the lower court did not advert to these facts in detail, the judgment and decree of the lower court is liable to be set aside. At any rate, if this court feels that any further evidence is necessary or detailed enquiry is necessary, the matter can be remitted to the trial Court for fresh disposal.
13. On the contrary, the learned counsel for the first respondent herein contended that the earlier suit filed by the first appellant herein with regard to the two institutions it has been held that the first appellant cannot claim any exclusive title or right over the management as he is only an agent acting on behalf of the first respondent and as such the relationship between the first appellant and the first respondent is only as the agent and principal. Moreover as per the regulations of the first respondent once a person attains sanyasam, the property owned by him vests with the first respondent and the Sanyasi cannot hold or possess any property of his own. Hence whatever the first appellant has done with regard to the establishment of the institutions acquiring of the property either in the name of the second defendant or the third defendant in the suit is only as an agent of the plaintiff and not in his individual capacity and as such the lower court''s finding that the suit is bared by res judicata in so far as the relationship of the parties is quite legal and valid. The lower court has rightly discussed the issues and found that the claim made by the first appellant with regard to the title over the suit properties cannot be sustained. With regard to the maintainability of the suit on the ground that all the trustees have not joined together, the first appellant had not raised any such plea either in the written statement or before the lower court and no issue has been framed in the suit and as such it is not open to the counsel for the appellant to raise such a plea at the appellate stage for the first time. Even with regard to the bar of the suit under the Tamil Nadu Private Schools Regulation Act, such a plea was not raised before the trial Court. When the documents have been obtained in the name of second and third appellants herein by the first appellant on behalf of the first respondent, then naturally no document will be in the name of the first respondent. Hence it is not open to the first appellant to contend that the first respondent has not produced any document in their name to establish the title and on this ground the suit is liable to be dismissed. When the earlier suit finding that the first appellant is only an agent of the first respondent is conclusive as the same is confirmed by the first appellate court as well as this court in Second Appeal S.A.604/93 whatever has done by the first appellant is only on behalf of the first respondent herein and hence the documents obtained by him in the name of the second and third appellants are also only on behalf of the first respondent herein. Hence the appeal has no merits and liable to be dismissed.
14. The points for consideration in this appeal are:-
(i) Whether the present plea of the Appellants is barred by res judicata in view of the earlier suit O.S.459/91.
(ii) Whether the suit is not maintainable for non-compliance of the statutory provision of Order 31, Rule 2 C.P.C.
(iii) Whether the suit is barred by virtue of Section 53 and 53-A of the Tamil Nadu Private Schools Regulation Act.
(iv) Whether the court fee paid in the suit is acceptable.
(v) When the suit has been framed claiming the plaintiff to be a registered society whether their claim to be the Trust can be permitted.
(vi) To what other relief the parties are entitled to.
15. Point No. 1:- The issues framed in the suit had been extracted earlier. Even though there is no plea with regard to res judicata,. the argument advanced before this court as well as before the lower court clearly establishes the fact that the parties went for trial with the specific understanding that the plea of res judicata is involved. As advanced before this Court, arguments were advanced before the trial Court also with regard to the plea of res judicata and the judgments were cited by either side and the lower court has given a finding in favour of the plaintiffs in paragraphs 14 and 15 of the judgment.
16. In fact before this Court the learned counsel for the appellant Mr. Selvaraj contended that there was no issue framed by the trial Court with regard to the plea of res-judicata and as such the contention of the first respondent herein that the dismissal of the earlier suit filed by the appellants herein claiming title in respect of some of the institutions would prove that the appellants have no title over any of the properties which are the subject-matter of the present suit cannot be accepted. In the absence of any issue, it is further not open to the trial Court to discuss this aspect and give a finding and hence the finding given by the Court below without framing any issues is illegal. Having made such submissions, the learned counsel for the appellants further contended that in the earlier suit O.S.459/91 filed by the appellants herein the subject-matter is only two schools viz., Vivekananda Higher Secondary School (Boys) and Sarada Girls Higher Secondary School, Pasupathipalayam, Karur. The dispute is only with regard to the management of the institutions and there is no dispute with regard to the title over any immovable property involved in the said suit. Whereas in the present suit under appeal the plaint ''A'' and ''B'' schedule are immovable properties as well as the institutions standing in the said properties. When there is no lies in the earlier suit between the parties with regard to the immovable properties, the finding given thereunder cannot be taken adverse to the appellants herein. It is the duty of the trial Court to find as to whether the first respondent herein, the plaintiff in the suit has established their title independent of the findings given by the trial Court in the earlier suit O.S.459/91.
17. On the contrary, the learned counsel for the first respondent contended that the real dispute between the parties in the earlier suit filed by the appellants herein O.S.459/91 is that whether the appellants herein can have any independent title over the institutions especially when they are only agents of the first respondent herein. When the appellants are only agents of the first respondent, they are acting only on behalf of the first respondent and they have no independent right or title over any of the properties. In the earlier suit, the trial Court having found that the appellants are only agents of the first respondent it cannot be said that the appellants are agents only with regard to the management of the institutions which are the subject-matter of the earlier suit but also in respect of the immovable properties over which the institutions are standing. In view of the findings in the earlier suit, it is not open to the appellants herein to set up an independent title or right over the subject-matter of the present suit and as such the trial court has rightly rejected the plea of the appellants on the ground of res judicata and decreed the suit.
18. We carefully considered the contentions of both the counsel. The written statement in O.S.459/91 on the file of the Sub-Court, Karur has been marked as Ex.A5 in the present suit. The copy of the plaint in O.S.251/91 on the file of the Sub-Court, Karur has been marked as Ex.A3. Admittedly the suit O.S.251/91 was withdrawn by the appellants herein as the that averments in both the suits O.S.251/91 and O.S.459/91 filed by the appellants are identical. It is stated in the written statement in the present suit by the first defendant that the suit O.S.251/91 had been withdrawn as they sincerely believed that they could get the desired relief in O.S.459/91. In view of the statement made by the appellants herein the written statement, it can be safely taken that the averments in the plaint O.S.251/91 is the same as in O.S.459/91. The judgment in O.S.459/91 has been marked as Ex.A9.
19. The appellants herein filed the said suit O.S.459/91 for declaration that they are the owners, founders and the educational agency of the schedule educational institutions and for consequential relief of injunction. The subject-matter of the said suit are Vivekananda Higher Secondary School (Boys) and Sri Sarada Girls Higher Secondary School, Pasupathipalayam, Karur. The first appellant herein claiming to be the Managing Trustee of the second appellant had filed the said suit stating that he is a Sanyasi. He had his training under Swami Chidbavananda. After obtaining sanyasam, he moved to Pasupathipalayam and started his mission work to spread the message of Sri Ramakrishna. He founded Sri Ramakrishna Ashramam, the second appellant herein and established six educational institutions viz., Vivekananda Primary School having standards 1 to 5, Vivekananda English School, having standards 1 to 5, Vivekananda Higher Secondary School (Boys), Vivekananda Matriculation Higher Secondary School, Sri Saradha Higher Secondary School, all the schools at Pasupathipalayam at Karur and Sri Saradha Nekatan College of Arts and Science College for women Kadangipetty. Karur. All the institutions have been established and administered by the first appellant herein. The funds for the educational institutions and the ashramam have been donated by the devotees and the general public. The second appellant trust was founded for the purpose of administering the ashramam, the educational institutions and it was being managed by the first appellant. In the application for the recognition of the institutions submitted to the education department, the educational agency was shown as the first respondent society herein. The first respondent never contributed any money for the establishment of the institutions. The first respondent has no title or interest over the second appellant ashramam as well as the educational institutions established by them. As the difference of opinion arose, the first respondent started to interfere with the administration of the educational institutions. Hence the suit has been filed.
20. The first respondent contested the claim of the appellants in the said suit contending that the first appellant is only an agent of the first respondent and he has no separate entity to own any property. Whatever done by the first appellant is only on behalf of the first respondent and as such none of the appellants can claim any exclusive title over any of the institutions.
21. After full fledged trial, the suit filed by the first and second appellants herein was dismissed. The first and second appellants preferred an appeal which was also dismissed. They further preferred a Second Appeal in S.A.604/93 before this court and the Second Appeal also was dismissed by this court by judgment and decree dated 28.4.97. While dealing with the claim of the first and second appellants with regard to the title over the two institutions, this court, in the Second Appeal has found that the first respondent herein had been shown as the educational agency for getting the recognition. The first appellant herein had been appointed as the Secretary-cum-Correspondent of those schools on the basis of the resolution passed by the Committee and the first appellant is a party to the resolution. To prove the establishment of the institutions, as alleged by the first appellant there is no evidence. And as such, the first appellant, was acting as Secretary-cum-Correspondent and he had the custody of the documents and ultimately the finding of the court below that the first appellant, is only a servant of the first respondent and only in that capacity he was managing the school had been confirmed and consequently the Second Appeal was also dismissed,
22. When once the relationship between the first appellant and the first respondent had been determined in the earlier litigation as that of the principal and agent, we are of the opinion that it is not open to the appellants herein to claim independent title over any of the plaint schedule properties. Whatever is done by the first appellant is deemed to have been done only on behalf of the first respondent society. Hence the donations collected by him as well as the management and control of those funds by him is only on behalf of the first respondent society. When that be the case, the second and third appellants initially founded by the first appellant for the sake of administrative convenience cannot be said to have any independent identity de hors the first respondent. In view of the determined relationship between the first appellant and the first respondent, irrespective of the variation in the plaint schedule properties between the suit O.S.459/91 and the present suit, we have no hesitation to find that the first appellant is only an agent of the first respondent and as such the collections made by him and the founding of the institutions from out of the collections, as admitted by the first appellant, can be said to have been only on behalf of the first respondent and as such he is not entitled to claim any individual title or right over the subject-matter of the suit. Hence the variation or the addition of the properties in the plaint schedule in the present suit will not throw the burden of proof on the first respondent, plaintiff in the suit, to establish their title over the plaint schedule properties independent of the findings of the earlier suit.
23. So far as the contention of the learned counsel for the appellants that there was no issue with regard to the res judicata in the present suit, the learned trial Judge in paragraph 7 of the judgment has categorically stated that the claim made by the first appellant in the earlier suit with regard to the title in respect of the two institutions is identical to that of the claim made in the present suit. In paragraph 14, the learned trial Judge has found that the pleadings in both the suits i.e., in O.S.459/91 and the present suit under appeal are all so laced and woven and one and the same. A perusal of the judgment of the lower court also reveals that some of the citations have been placed before the lower court for consideration as to whether the present suit is barred by res judicata or not. Hence from these facts, it is clear that the parties went to the trial with full understanding that the issue of res judicata is involved in the suit.
24. On behalf of the appellants, no objection has been raised before the lower court with regard to the plea of ''res judicata'', even though no specific issue has been framed in that respect. On the other hand, the learned counsel for the appellants before the lower court had contested the claim of the first respondent herein with regard to the plea of res judicata and argued the ease by citing various judgments. When that be the case, we are of the opinion that it is not open to the appellants herein to raise an objection before this Court at this stage with regard to the failure to frame the issue of res judicata.
25. In the case of Madhavan v. Kannammal (1989 I MLJ 136=1990-2-L.W. 274) Hon''ble Mr. Justice Srinivasan has held as follows:
"As regards the first contention that the plaintiffs cannot abandon their case and rely upon the case set up by the defendants in order to get a decree, a learned counsel places, reliance upon a judgment of mine in
From the above passage, it is clear that on the materials available before the court; especially by indisputable records, the court is entitled to grant the relief to the parties, even though there is no plea to that effect. Hence the non-framing of the issue with regard to the plea of res judicata cannot vitiate the findings of the trial Court, as the findings were based not only on the materials available on record but also on the basis of the arguments advanced on behalf of the parties.
26. The Supreme Court in the case of Rebti Devi v. Ram Dutt (1998 I L.W.346) has categorically held that when both sides have adduced evidence, the question of burden of proof pales into insignificance in the following terms:
"So far as the first submission of the appellant''s counsel is concerned, we are of the view that it is true that the respondents-defendants who have raised a defence of benami in their written statement have to discharge the initial burden of proof and establish the plea of benami. Parties adduced oral and documentary evidence. The lower Appellate Court had considered the evidence adduced by both sides and arrived at a conclusion that the defendants had discharged the said burden. When both sides had adduced evidence, the question of burden of proof pales into insignificance. The High Court was therefore right in not interfering with the said finding. The said finding of fact cannot be canvassed in this Civil Appeal by the plaintiff or her legal representative."
27. In the case on hand, admittedly both the parties have let in evidence with regard to the nature of relationship between the appellants and the first respondent. When it is the case of the first respondent that the appellants are only agents and whatever they did is only on behalf of the first respondent, we are of the opinion that it is unnecessary for the first respondent to produce the title deeds in their name. The question has to be decided only on the basis of the relationship between the inter se parties viz., the first respondent and the appellants herein.
28. Even though both the counsel cited number of decisions, we are of the opinion that there is no need to refer those judgments and extract herein, since there is no dispute with regard to the principle that if a finding has been given in the earlier suit in respect of the dispute which is identical to the one arising in the present suit, then such issue in the present suit will be covered by the principles of res judicata. As already stated irrespective of the difference in the parties as well as variation in the properties between the two suits, the only question involved in the present suit is about the relationship between the first appellant and the first respondent as to whether the first appellant is an agent of the first respondent or he is having a separate entity to own or have independent management of the property.
29. From the above discussion, it is clear that in the earlier suit O.S.459/91, the first respondent is found to be the agent of the first respondent. In this proceeding also, the plea of the first respondent herein is that the appellants are only agents of the first respondent and they have no independent right over the suit properties. Hence the findings in the earlier suit with regard to the relationship of the parties between the first respondent and the appellants herein would necessarily operate as res judicata and as such the present suit has to be decreed. Since the plea of the first respondent is barred by res judicata.
30. So far as the second point is concerned, admittedly the plea that the suit is bad for non-compliance of Order 31, Rule 2, C.P.C. had not been raised in the written statement as well as during the argument stage before the trial Court. The suit has been filed in the year 1992. Hence, we are of the opinion that the appellants cannot be permitted to raise such a plea at the belated stage. In the absence of any specific plea that there are other trustees who have not been impleaded as parties to the proceedings, it is not open to this court to infer something from out of the stray statements to non-suit the first respondent, the plaintiff in the suit. Further the appellants have not taken a specific stand as to whether the first respondent is a registered society or a trust. In order to deny the relief sought for by the first respondent, the appellants also ought to have come with a specific plea. When there is no such specific plea or any alternative plea also in the written statement, we are of the view that the appellants plea with regard to the maintainability of the suit for noncompliance of Order 31, Rule 2, cannot be accepted and hence this point is also found against the appellants.
31. Coming to the third point, it is the contention of the learned counsel for the appellants that the suit is barred in view of Sections 53 and 53-A of the Tamil Nadu Recognised Private Schools (Regulation) I Act, since the Civil Court has no jurisdiction to try any dispute arising under the Act.
32. It is worthwhile to extract both the sections which reads as follows:
"53. Civil Court not to decide questions under this Act.--No Civil Court shall have jurisdiction to decide or deal with any question which is by or under this Act required to be decided or dealt with by any authority or officer mentioned in this Act.
53- A. Settlement of dispute as to educational agency, etc.--(1) Notwithstanding anything contained in Section 53, whenever any dispute as to the constitution of any educational agency, or as to whether any person or body of person is an educational agency, in relation to any private school, or as to the constitution of a school committee, or as to the appointment of the secretary of the school committee, arises, such dispute may be referred by the persons interested or by the competent authority to the Civil Court having jurisdiction for its decision.
(2) Pending the decision of the Civil Court on a dispute referred to it under sub-section (1), or the making of an interim arrangement by the Civil Court for the running of the private school, the Government may nominate an officer to discharge the functions of the educational agency, the school committee or the secretary, as the case may be, in relation to the private school concerned."
A reading of Section 53 would reveal that the Civil Court has no jurisdiction to decide or deal with any question arising under the Act required to be decided or dealt with by any authority or officer mentioned in this Act. The first respondent has filed the suit for declaration of their title in respect of the schedule properties and for recovery of possession on the ground that the first appellant is only an agent of the first respondent, who, ultimately turned hostile towards the first respondent and set up an independent title for himself. Hence the real dispute between the first respondent and the first appellant in this suit is with regard to the title over the plaint schedule properties. The learned counsel for the appellants fairly conceded that there is no provision in the said Act empowering any of the authorities under the Statute to decide the question of title in respect of the properties between the parties. When there is no authority specified under the Statute to decide the dispute of title between the parties, naturally the parties have to approach the Civil Court to get redressal. Hence we are of the opinion that Section 53 of the Act is not attracted to bar the suit.
33. Similarly Section 53-A of the Act empowers the authorities to refer the dispute to Civil Court whenever there is any dispute with regard to the constitution of Educational Agency or the constitution of School Committee arises, de hors Section 53 of the said Act. Here again the learned counsel for the appellant fairly conceded that there is no dispute with regard to the constitution of any Educational Agency or constitution of School Committee or the appointment of the Secretary to the School Committee and contended that the suit is not maintainable as any one of the above dispute arises. When it is admitted that none of the disputes mentioned in Section 53-A arises herein, ultimately the only dispute between the parties is with regard to the title over the schedule properties. If that be so, neither Section 53-A nor Section 53 of the said Act is attracted. Hence there is no substance in the contention of the learned counsel for the appellants and as such this point is also found against the appellants.
34. With regard to point No. 4, the contention of the learned counsel for the appellants is that the suit filed by one trust against another and as such Section 25 of the Tamil Nadu Court Fees and Suits Valuation Act is not applicable. Hence the court fee paid is not correct.
35. On the contrary, the learned counsel for the first respondent contended that the suit has been filed not against the trust i.e., the defendants 2 and 3 but against the first appellant herein, the former trustee who maintains 2nd and 3rd defendant trusts, on behalf of the first respondent herein and hence the suit is only against the former trustee against his action of claiming independent right. Hence only Section 25 of Court Fees Act is applicable.
36. As discussed in point No. 1 in detail, the plea of the first respondent is that the first appellant is only an agent appointed by the first respondent to maintain the institutions and the properties thereunder. The defendants 2 and 3, Trusts were formed or founded by the first appellant only from out of the funds received from the public as well as from the income of the institutions and whatever he has done is only on b(sic)half of the first respondent and not in his individual identity. When that be so the contention of the learned counsel for the appellant that the present suit has been filed by the first respondent against the second and third defendant trust cannot be accepted. The suit is only against the first appellant who is an agent of the first respondent.
37. Section 28 of the Court Fees Act deals with the suits relating to trust property claiming between the trustees or rival claimants to the office of the trustee or between a trustee and person who has ceased to be trustee and the suit is one for possession or joint possession of trust property or for declaratory relief. In this case the first appellant is only in the status of a trustee appointed by the first respondent to manage the educational institutions and the properties owned by them. When he started to act adverse to the interest of the first respondent, setting up independent title over the educational institutions and the properties owned by them, the first respondent filed the suit for declaration of their title. Hence, the suit is only against the trustee, ceased to be the trustee by virtue of the resolution passed by the first respondent. In such circumstance, the suit has been properly valued and proper court fees has been paid u/s 28 of the Court Fees Act.
38. It may be further pertinent to note that when once already it has been held in the earlier suit that the first appellant is an agent appointed by the first respondent, the dispute arises in this suit is only with regard to the management of the subject-matter of the suit and really the title cannot be said to be under dispute, even though the suit has been filed for declaration of title.
39. With regard to point No. 5, the contention of the learned counsel for the appellants is that the first respondent is a registered society and as such their claim that they are entitled to claim to be a trust is not maintainable. The contention of the learned counsel for the appellants is that the suit is not maintainable as the co-trustees have not been impleaded as parties to the suit. The other contention of the learned counsel for the appellants is that the suit has been filed by one trust against other trust and as such Section 28 of the Court Fees Act is not applicable..
40. From the above contention it is clear that the learned counsel for the appellants conceded that the plaintiff in the suit, the first respondent herein, is a trust. This plea has not been raised as an alternative plea and being the main contentions of the counsel for the appellants to non-suit the first respondent herein, it is not open to the counsel for the appellant to raise contradictory contentions with regard to the maintainability of the suit. Moreover, even though the plea had been raised by the counsel for the appellants that the suit is bad for non-joinder of the parties viz., co-trustees, as already submitted, no-specific plea has been raised in the written statement furnishing the details of the trustees. From the above facts, it is clear that the first appellant has admitted that the first respondent being a trust and raised above such pleas and as such now it is not open to them to turn round and put forth contradictory pleas.
41. Even though the learned counsel for the appellants relied upon the judgment of this Court reported in Guhan v. Rukmini Devi Arundale (100 L.W. 182) in support of his contention, on a perusal of the said judgment, we are of the view that the principle laid down therein has no application to the facts of the present case, as in the reported case the question involved is whether the society registered under the Societies Registration Act can be converted into a trust without following the procedure to dissolve the society. Hence this judgment is of no assistance to the contention of the learned counsel for the appellants and consequently this issue is found against the appellants.
42. Apart from the above issue, the learned counsel for the appellants contended that the rules and regulations of Sri Ramakrishna Tapovanam envisages that the Sanyasans and Brahmacharis can become the members. Rule 3 deals with the Monastic Members. Rule 3(a) contemplates that those who have renounced the world and joined the Tapovanam as probationers for Brahmacharya and Sanyasa shall be classified as monastic members. Rule 3(b) contemplates that the Monastic members shall not own personal properties. All properties gifted to them automatically become the property of the Tapovanam. The learned counsel for the appellants submitted that the learned counsel for the first respondent may advance an argument because of this Rule the first appellant cannot own any property and whatever the property received by him would vest with the first respondent. His contention is that the Sanyasi is entitled to own separate property and he can formulate the heirship for such property. Moreover, the immovable property cannot be transferred automatically from one trust to another without a registered document. In the absence of any registered document in favour of the first respondent, it is not open to them to claim that the properties belong to them, even though the registered deeds stand in the name of the second and third appellants.
43. The learned counsel for the first respondent contended that the Rules and Regulations have been formulated to maintain the discipline among the members of Tapovanam. Once a person obtains sanyasam and becomes a member of the first respondent Tapovanam, he is expected to respect and obey the Rules and Regulations, otherwise the first respondent Tapovanam will have to face the indiscipline from their members. Having become a member of the first respondent, after accepting the Rules and regulations, it is not open to any of the members of the first respondent to contend that the Rules and Regulations are bad.
44. We carefully considered the contentions of both the counsel. We do not think any elaborate discussion is necessary in view of our finding with regard to the issue of res judicata. Rule 3 prescribes the restrictions with regard to the owning of the properly by the members of Tapovanam who are Sanyasis and Brahmacharis. The restriction is to the effect that they should not own any individual property because their personal care is being taken care of by the first'' respondent. It is needless to say that when a person renounces everything and becomes a sanyasi, he should not have any liking or ambition in his mind to possess something personally. If such an intention is developed in his mind to own or possess something personally, then there is no meaning for becoming a sanyasi who is expected to renounce all likes and dislikes. Only to enable the sanyasi, a member of the first respondent Society, to serve in the welfare of the society, these restrictions have been imposed. Otherwise forgetting the interest and welfare of the society, any sanyasi may develop an idea to increase his wealth by acquiring the property.
45. Apart from the above, when the first appellant is only an agent of the first respondent, he cannot claim that he has founded'' the second and third appellants in his individual capacity. Only to prevent such claim by the agents appointed by the first respondent, clause 3(b) of the Rules of Tapovanam contemplates that whatever the property acquired by the member of the first respondent society would vest with the first respondent. When it is said that the property acquired by the member of the first respondent like the first appellant would vest with the first respondent, the contention of the learned counsel for the appellants that a registered document is required for such vesting is unsustainable. There is no question of transfer of property is involved from the appellants herein to the first respondent for the simple reason that whatever done by the first appellant is only on behalf of the first respondent and the property acquired by him in the name of the 2nd and 3rd appellants also has to be construed only on behalf of the first respondent. In that case, the first respondent is deemed to be the owner of the property who is having management and control. The first appellant is deemed to have been entrusted with such management under the control of the first respondent. Hence this contention of the learned counsel for the appellants is also rejected.
46. Further the learned counsel for the appellants referred to paragraphs 589 and 590 in Mayne''s Hindu Law 12th edition and contended that the Sanyasi can own separate property and prescribe the heirship. There cannot be any doubt that a Sanyasi, if in his individual capacity has acquired any wealth, naturally he will be having the control and management of the property independently without any control from any other source, and as such he is entitled to prescribe heirship for such of his or trust properties for the management of the same. In this case.; the first appellant has not acquired any, property in his individual capacity in order to claim that those properties are his own. In fact, the records clearly reveal that some of the properties have been transferred to the names of the second and third appellants and such transfers have been challenged in the earlier suit by the first respondent herein and the same has been found against the first appellant.
47. Even though the first appellant claimed title, he has not produced any of the documents before the trial Court, he has filed petition C.M.P. Nos. 4459 to 4461 of 1999 before this court to produce those documents by way of additional evidence. We do not think there is any necessity to entertain the same in view of the above findings that the first appellant is only an agent and whatever he has done, including the acquisition of property, is only on behalf of the first respondent. As per Rule 3 of the Rules and Regulations of the first respondent Tapovanam, the property vest with the first respondent herein, and the first appellant cannot have any individual right or title over the same.
48. In the result, the appeal is dismissed. However, there will be no order as to costs. Before parting with the case, it is necessary to mention about the conduct of the parties. In spite of the trial Court''s direction in the earlier suit to settle the matter, the parties have not settled the matter, but the litigation has increased in different amplitude. Writs, Writ Appeals and Contempt Applications have cropped up. When the institution is being managed by the Sanyasis, we are unable to understand how they can entertain personal animosity against each other and come to court to resolve their problem. As pointed out in our judgment, a Sanyasi is supposed to have renounced all likes and dislikes and has to concentrate only in the welfare of the human being i.e., the society at large. It is rather a sad state of affairs that the parties have initiated the litigation and concentrated in the same in order to have the property, rather than to divert their mind to the welfare of the human beings. At least, hereafter, the first respondent may take into consideration the conduct of the first appellant regarding what he has done for the interest of the institutions and recognise his services by keeping him in the same place, if possible, provided the first respondent gives an understanding that in future he will not do anything adverse to the interest of the first respondent society and also without getting prior sanction from the first respondent with regard to the administration or management of the institutions.
