T. Mathivanan, J.@mdashThe second appeal in S.A. No. 729 of 2005 has been directed against the Judgment and Decree dated 29.09.2004 and made in A.S. No. 225 of 2002, on the file of the learned II Additional Subordinate Judge, Madurai, confirming the Judgment and Decree dated 02.07.2002 and made in O.S. No. 205 of 2000, on the file of the learned District Munsif, Madurai. Whereas, the second appeal in S.A. No. 730 of 2005 has been directed against the Judgment and Decree dated 29.09.2004 and made in Cross Objection in A.S. No. 225 of 2002, on the file of the learned II Additional Subordinate Judge, Madurai, reversing the Judgment and Decree dated 02.07.2002 and made in O.S. No. 205 of 2000, on the file of the learned District Munsif, Madurai. With the parties to the second appeals are one and the same and the subject matter as well as the issues involved in both the second appeals are also one and the same, these two second appeals have been consolidated, heard jointly and disposed of in this common Judgment.
2. The appellants in both the second appeals are the plaintiffs in the suit in O.S. No. 205 of 2000, on the file of the learned District Munsif, Madurai, whereas the respondents herein are the defendants therein. Therefore, this Court finds that the parties to the second appeals may hereinafter be referred to as the plaintiffs and the defendants as it is in the suit, wherever the context so require.
3. The facts, which are absolutely necessary for the disposal of the second appeals are as under:
3.1. The first defendant is the mother of the second defendant and the grandmother of the third defendant. One Nallama Reddy (since no more) is the son of the second defendant and grandson of the first defendant and brother of the third defendant. The first plaintiff Mrs. Revathi is the wife of the said Nallama Reddy and the plaintiffs 2 and 3 are his daughters. According to the plaintiffs, the first defendant as well as the second defendant, being the grandmother and mother of the deceased Nallama Reddy, had executed two settlement deeds in respect of their properties on 08.09.1979 and 06.10.1979 respectively in favour of Nallama Reddy, the only son of the second defendant. The possession of all the properties was handed over to the said Nallama Reddy on the date of execution of the settlement deeds and as such he became the absolute owner thereof. On 25.01.1983, the said Nallama Reddy, who is the husband of the first plaintiff and father of the plaintiffs 2 and 3 had passed away. After his demise, the plaintiffs were in possession and enjoyment of the suit property along with other properties as the absolute owners. Necessary mutations were also effected in the revenue records and as such the first plaintiff along with her daughters viz., plaintiffs 2 and 3 had inherited all the properties left by her husband Nallama Reddy. The house tax and other Government taxes as well as kist are being paid by the first plaintiff.
3.2. The third defendant, who is the only sister of Nallama Reddy got married two years prior to the death of Nallama Reddy and at the time of her marriage she was presented with 75 sovereigns of gold and silver utensils worth about several lakhs rupees and after her marriage she has been leading a separate family along with her husband. The plaintiffs would contend further that it was reliably learnt that the defendants 1 to 3 had created some fake documents concerning the suit property, which were settled in favour of Nallama Reddy, in the year 1979 and causing continuous threat to the peaceful possession and enjoyment of the plaintiffs over the suit property by way of prescriptive title after the death of Nallama Reddy.
3.3. On the strength of fake documents created by the defendants 1 to 3, the fourth defendant, who is the District Registrar of Audit, Madurai North Taluk, had issued a notice, dated 11.09.2000, to the first plaintiff informing that they were going to inspect the suit property to assess the market value. The said notice was suitably replied by the plaintiffs and thereby they had expressed their objections. Only under this circumstance, the plaintiffs were constrained to file the suit seeking for perpetual injunction.
3.4. The first defendant, who is the mother of the second defendant and grandmother of the third defendant has contended in her written statement that she and her daughter (D2) had executed a testament dated 06.10.1979 in favour of her grandson Late. Nallama Reddy. In the said document they have specifically stated that "the properties specified in the deed shall have to be enjoyed jointly by all the three persons viz., D1, D2 and the deceased Nallama Reddy. According to the defendants, the said document dated 06.10.1979 is not a settlement, but infact it is a Will.
3.5. Further, she has contended that she and the second defendant had never intended to confer any right upon Nallama Reddy over the suit property during their lifetime and that they are having every right to revoke the Will. Since the second defendant''s only son Nallama Reddy is predeceased her, the intention with which the documents were executed got frustrated. Hence, the claim of absolute right over the suit property made by the plaintiffs is not tenable. Since the defendants 1 and 2 are alive, the plaintiffs have no legal right to claim possession over the suit property. The house tax and electricity connection stand in the name of the first defendant and since the defendants 1 and 2 have been in possession and enjoyment of the suit property, the plaintiffs cannot maintain the suit for perpetual injunction as against them. Indeed, the defendants 1 and 2 had validly revoked the testament dated 06.10.1979 by a registered deed of revocation dated 26.06.2000. Therefore, the plaintiffs have got no semblance of right over the suit property.
3.6. The fourth defendant, being the District Registrar of Audit, Madurai North Taluk, has contended in his written statement that by virtue of Sections 27 and 64 of the Indian Stamp Act, 1899, intelligence cells comprising of officials of the Tamil Nadu Registration Department including District Registrars (Audit) have been formed in every Registration District in the State to find out whether any material informations have been suppressed in the document with an intention to undervalue the document and thereby evaded the stamp duty and registration fee. Accordingly, the fourth defendant among other Sub-Registry Offices has to inspect the building property dealt with in the documents registered at Sub-Registrar Office, Vadipatti. Only under this circumstance, the fourth defendant had taken action to inspect the building comprised in Door No. 8-5-1, Lakshmipuram, Pudur, Neerathan Village, dealt with in Document No. 788 of 2000 of Sub-Registrar Office, Vadipatti, which is the document herein. As there was an objection on the side of the plaintiffs, the fourth defendant vide his letter No. 130/DA/2000, dated 04.09.2000, had informed the plaintiffs that he is only performing his official duties of value fixation enjoined on him by virtue of his office as District Registrar (Audit) and accordingly he had advised the plaintiffs to refrain from preventing him performing his official duties as they can very well seek remedy in the Court of Law, if they feel aggrieved.
3.7. As envisaged under Rule 55 of Tamil Nadu Registration Rules, the registering officials are not supposed to look into the validity of the documents brought to them for registration nor do the person-executing the document has the right to do so. It is the official duty of the fourth defendant to make field inspection to find out as to whether any suppression of fact relating to the violation of building property has been made. Hence, the suit filed by the plaintiffs is not maintainable.
4. Based on the material proposition of facts, the learned District Munsif, Madurai, had formulated as nearly as three issues. They are:
i. Whether the plaintiffs are entitled to for the relief of injunction?
ii. Whether the suit is maintainable as framed? and
iii. To what other relief?
5. In order to substantiate their respective cases, the parties to the suit were directed to face the trial. The first plaintiff was examined as P.W. 1 and one Karuppiah was examined as P.W. 2 and during the course of their examination Exs. A1 to A35 were marked. On the other hand, the defendants 1 and 2 were examined as D.W. 1 and D.W. 2 respectively and during the course of their examination Exs. B1 to B23 were marked.
6. On evaluating the evidences both oral and documentary, the learned Trial Judge had proceeded to dismiss the suit on the ground that the plaintiffs are not in exclusive and lawful possession of the suit property. Further, the learned Trial Judge has also found that:
i. The documents under Exs. A1 and A4 and other documents are all in favour of the plaintiffs and also would go to show that they are in possession and enjoyment of the suit property;
ii. From the year 1983 the defendants 1 and 2 have allowed the plaintiffs to enjoy the properties as their own. In such circumstances, the defendants 1 and 2 are estopped from denying the rights of the plaintiffs;
iii. The plaintiffs have inherited the properties of the deceased Nallama Reddy. The deceased Nallama Reddy had accepted the gift of the defendants 1 and 2 during the time of execution of Exs. A1 and A4;
iv. Exs. A1 and A4 are settlement deeds and cannot be presumed to be Will, unfortunately, Nallamma Reddy died and his mother and grandmother are alive. The second defendant is also one of the legal representatives of the deceased and therefore the second defendant is entitled to obtain her share in Nallama Reddy''s property;
v. As per the available evidences, the first plaintiff being the wife of Nallama Reddy, the plaintiffs 2 and 3 are his daughters and the second defendant being the mother of Nallama Reddy, are entitled to their respective shares in the properties of Nallama Reddy;
vi. The second defendant is also entitled to obtain a share in the suit property and other properties.
vii. Since the second defendant is one of the co-sharers in the suit property, the plaintiffs cannot seek any relief of injunction against the second defendant and therefore the plaintiffs are not entitled to the relief of perpetual injunction as prayed for against the defendants including the second defendant.
7. Having been aggrieved by the Judgment and Decree of the Trial Court, dated 02.07.2002, the plaintiffs have preferred an appeal in A.S. No. 225 of 2002, as against the finding of the Trial Court saying that Exs. A1 and A4 are settlement deeds and cannot be presumed to be a Will. The defendants have also preferred a cross objection in A.S. No. 225 of 2002, on the file of the learned II Additional Subordinate Judge, Madurai, against the finding of the Trial Court saying that Exs. A1 and A4 are settlement deeds and cannot be presumed to be Will.
8. The following points have been shaped up from the grounds of main appeal as well as the cross objection for the consideration of the first Appellate Court:
i. Whether Ex. B1 is a settlement as alleged by the plaintiffs or a Will as alleged by the defendants 1 and 2 in the suit?
ii. Whether the plaintiffs are in absolute possession and enjoyment of the suit property?
iii. Whether the plaintiffs are entitled for a decree of permanent injunction as prayed for in the plaint? and
iv. Whether the Decree and Judgment of the Trial Court are sustainable?
9. The first Appellate Court, on considering the submissions made on behalf of both sides and on appreciation of the evidences, has concluded that the plaintiffs could be construed to be only joint enjoyment along with the defendants and that their possession in respect of the suit property is not absolute but only in the joint possession along with the defendants. He has also concluded that even though Ex. B1(A1) has been styled as a settlement deed it can be construed only as a Will. Based on it''s conclusion, the first Appellate Court, has dismissed the main appeal and allowed the cross objection on 29.09.2004 and thereby the finding of the Trial Court therein that Ex. B1 is a settlement deed is set aside and in other aspects the Decree and Judgment of the Trial Court were confirmed.
10. Impugning the said Judgment and Decree dated 29.09.2004, the plaintiffs have preferred the above second appeals.
11. Both the second appeals have been admitted, on 11.08.2005, on the following substantial questions of law:
i. Whether the lower Appellate Court has committed error of law when under Ex. A34 the respondents 1 and 2 themselves have accepted the execution of the settlement and attempted to cancel that after 21 years which cannot be done in law? and
ii. Whether the Courts below are right in denying injunction in favour of the appellant against the fourth respondent when the appellant is admittedly in possession of the suit property?
12. Substantial question of law No. 1:
The Trial Court had found that Exs.A1 and A4 are settlement deeds and cannot be presumed as a Will. With reference to this finding, the defendants had preferred a cross objection in the appeal, while the appellants had preferred an appeal in A.S. No. 225 of 2002, challenging the Judgment and Decree of the Trial Court, dated 02.07.2002.
13. Admittedly, Ex. A1(B1) alone is relating to the suit property, whereas Ex. A4 is totally irrelevant. Admittedly, Ex. A1, dated 06.10.1979, has been titled as ''Settlement Deed. On perusal of this document, it is manifested that the defendants 1 and 2 had executed this document in favour of one Nallama Reddy, who is none other than the son of the second defendant and the grandson of the first defendant. As it has been stated in the foregoing paragraphs, he is also the husband of the first plaintiff and father of the plaintiffs 2 and 3.
14. From the above said document (Ex. A1), the sentences, which are very much relevant to define the term ''Will'' or ''Settlement'' are being extracted as under:
In Page No. 1, Line No. 2 from top;
In Page No. 2, Line No. 4 from top and continuation from Page No. 3;
In Page No. 3, Line No. 12 from top;
15. From the above lines, it is thus made clear that the defendants 1 and 2 had jointly executed the above said document retaining their life interest over the suit property specified therein with them. Further, the absolute right was given to Nallamma Reddy only after their death. Till then the suit property had to be enjoyed in common by the defendants 1 and 2 along with Nallamma Reddy.
16. It is also made clear that during the lifetime of the defendants 1 and 2, the absolute right over the suit property would not be devolved upon Nallamma Reddy. Unfortunately, Nallamma Reddy had predeceased the defendants 1 and 2 but unfortunately they are still alive. When they are alive still, from the covenants of the above said document (Ex. A1), it could easily be understood that since Nallamma Reddy had predeceased the defendants 1 and 2, Ex. A1 automatically ceases to exist, because the beneficiary viz., Nallamma Reddy had passed away during the lifetime of the defendants 1 and 2. However, the defendants 1 and 2 had proceeded to execute a registered deed of cancellation dated 26.06.2000, and thereby they had cancelled Ex. A1. In the deed of cancellation, they have stated that since their intention to bequeath the suit property in favour of Nallamma Reddy was not fructified as he had passed away within 3 1/4 years from the date of execution of Ex. A1, they were constrained to cancel Ex. A1.
17. Mr. M.V. Venkataseshan, learned counsel appearing for appellants has adverted to that as rightly concluded by the Trial Court Exs.A1 and A4 are only settlement deeds and not Will and therefore the plaintiffs, being the legal heirs of Nallamma Reddy, are the absolute owners of the suit property and as such they have been in possession and enjoyment of the property.
18. In support of his contention, he has placed reliance upon the following decisions:
i.
ii.
iii.
19. In the decision first cited supra viz., Thiagarajan''s case, mother had executed a settlement deed in favour of her daughter by a registered document attested by two witnesses and her daughter had accepted such gift and raised loan by mortgaging part of the gifted property. The original sale deed in respect of the property was in possession of the daughter. Daughter had accepted and was in constructive possession of the gifted property. Under this circumstance, the learned single Judge of this Court has found that the gift was accepted and acted upon and therefore the settlement deed cannot be cancelled.
20. In the decision second cited supra viz., Namburi Basava Subrahmanyam''s case, the Honourable Apex Court has held that the nomenclature of the document is not conclusive. The recitals of the document as a whole and the intention of the executant and acknowledgement thereof by the parties are conclusive. The Court has to find whether the document confers any interest in the property in praesenti so as to take effect intra vivos and whether an irrevocable interest thereby, is created in favour of the recipient under the document, or whether the executant intended to transfer the interest in the property only on the demise of the settlor. Those could be gathered from the recitals in the document as a whole.
21. It has also been held that the document in this case, described as ''settlement deed'' was to take effect on the date on which it was executed. The settlor created rights thereunder intended to take effect from that date, the extent of the lands mentioned in the Schedule with the boundaries mentioned thereunder. Combined reading of the recitals in the document and also the Schedule would clearly indicate that on the date when the document was executed she had created right, title and interest in the property in favour of her second daughter but only on her demise she was to acquire absolute right to enjoyment, alienation etc. In other words, she had created in herself a life interest in the property in praesenti and vested the remainder in favour of her second daughter. It is settled law that the executant while divesting herself of the title to the property could create a life estate for her enjoyment and the property would devolve on the settlee with absolute rights on the settlor''s demise. Thus, the document in question could be construed rightly as a settlement deed but not as a Will. The settlor, having divested herself of the right and title thereunder, had, thereafter, no right to bequeath the same property in favour of her first daughter.
22. The above cited decision is not in fair congruence with the facts and circumstances narrated in the present case on hand. In the given case on hand, the executants viz., defendants 1 and 2 while divesting themselves of the title to the property, had created a life estate for their enjoyment. Admittedly, the suit property would devolve upon the settlee viz., Nallamma Reddy, with absolute right, only on the executant''s demise. Here, the settlee had predeceased the executants. The intention of the settlors was not fulfilled and fructified. Since their intention was not materialized, what is the value attached to the document under Ex. A1? As observed herein before it has become automatically infructuous and ceases to exist under Ex. A34 as they had proceeded to cancel the document under Ex. A1. Therefore, the above cited decision cannot be made applicable to the present case on hand and as observed by the Honourable Apex Court, the Court has to find whether the document confers any interest in the property in praesenti so as to take effect intra vivos and whether an irrevocable interest thereby is created in favour of the recipient under the document. This could be gathered from the recitals of Ex. A1(B1) as a whole.
23. In the decision third cited supra viz., Rajammal''s case, the learned single Judge of this Court has explained and defined the features of the term ''Settlement''. According to him, the features of settlement are:
a) document containing present disposition and vesting of right in praesenti,
b) actual disposition could be postponed provided there is present disposition and creation of right in praesenti,
c) document which contains self restriction on executant with reference to sale or encumbrance where executant is in possession of property should be construed as settlement.
24. On the other hand, Mr. A. Sivaji, learned counsel appearing for the respondents 1 to 3, has argued that the respondents/defendants are concerned with Ex. A1 alone. According to him, Ex. A1 is only a Will and not settlement deed and therefore the finding given by the first Appellate Court did not suffer with any infirmity and therefore he has urged to dismiss both the appeals.
25. Will or Settlement:
Even if a Will contains a Clause it is irrevocable, the law makes it revocable. Consequently, whether a particular document contains provisions as to make it revocable or irrevocable is not decisive of the question whether it is a Will or a Settlement. Option or nomenclature given by the parties to the transaction is not decisive of the question it is a Will or a Gift.
26. The real and the only reliable test for the purpose of finding out whether the document constitutes a Will or Gift is to find out as to what exactly the disposition which the document has made, whether it has transferred any interest in praesenti in favour of Settlee or in intended to transfer interest in favour of the Settlees only on the death of the Settlors.
27. It would prima facie be true to say that the Will has to be proved like any other document, except as to the special requirements of attestation prescribed by Sec. 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of Proof of Wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.
28. However, there is one important feature which distinguishes Wills from other documents. Unlike other documents the Will speak from the death of the Testator and so, when it is propounded or produced before a Court the testator who has already departed the world cannot say whether it is his Will or not and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last Will and statement of the departed testator.
29. Settlement:
A ''Settlement'' is any non-testamentary disposition, in writing, of immovable property made by one person (known as the ''Settlor'') in favour of another person (known as the ''Settlee'') in any one of the following circumstance:
a) in consideration of the marriage of the Settlee and to provide for him or her the purpose of distributing property of the Settlor amongst his family or those for whom he desires to provide, or for the purpose of providing for some person dependent on him or her, or for any religious or charitable purpose for various other reasons. The main ground is ''Love and Affection''.
b) Unlike the Will, the Settlement takes effect immediately after execution and registration, and cannot be revoked.
30. Some more characteristics of Settlement/Gift:
a) Settlement Deed is a public copy and accessible to anyone from Registrar office.
b) Settlement can be made during lifetime and can be made absolutely or conditionally say for e.g., wife until her life enjoying the property, thereafter to son or daughter absolutely or in some cases only to grandchild absolutely but limited enjoyment to wife, son or daughter, thereafter to grandchild absolutely.
c) Can be given only to living persons, not to unborn children.
31. In a settlement deed, there is an immediate transfer of interest. This may be a contingent interest or absolute interest. Once this vests absolutely on the settlee, it cannot be revoked by the settlor.
32. Will:
A Will is legal declaration expressing the wishes of the Testator to be carried into effect after his death. The Testator can change the line of succession and provide for disposition of the properties acquired by him in any manner and to any person he likes. A Will not required to be executed in any particular form. There is no stamp duty for a Will.
33. The Will is a special mode of transfer of property (movable or/and immovable property) by a competent person (not being a minor, lunatic etc.,) in sound disposing state of mind and body. No stamp is necessary for a Will. A plain paper is sufficient, but it must be written legibly and (sic) vagueness. Suspicious circumstances in the due execution of a Will have to be removed by the propounder (beneficiary) of the Will.
34. The term ''Will'' as defined under Section 2(h) of the Indian Succession Act, 1925 means the legal declaration of the intention of a testator with respect of his property, which he desires to take effect after his death. A document cannot by any stretch of imagination be termed a Will, although it is so described, if it does not dispose off any property of it''s executant nor is it to come into effect on and after his death.
35. There are various kinds of Wills such as privileged and unprivileged Wills, conditional or contingent Wills, joint Wills, mutual Wills, duplicate Wills, concurrent Wills, sham Wills, holograph Wills. These are uncommon Wills.
36. A document can be partly testamentary and partly immediately effective as a settlement. A part of the instrument may operate in praesenti as a Deed, and another in futures as a Will. The Law of the Wills is the most difficult and complicated of branch of Law. The most obvious reason for making a Will is that the testator does not wish his property to devolve in accordance with the intestacy provisions.
37. In
19. Vested interest.-Where, on a transfer of property, an interest therein is created in favour of a person without specifying the time when it is to take effect, or in terms specifying that it is to take effect forthwith or on the happening of an event which must happen, such interest is vested, unless a contrary intention appears from the terms of the transfer.
A vested interest is not defeated by the death of the transferee before he obtains possession.
Explanation.-An intention that an interest shall not be vested is not to be inferred merely from a provision whereby the enjoyment thereof is postponed, or whereby a prior interest in the same property is given or reserved to some other person, or whereby income arising from the property is directed to be accumulated until the time of enjoyment arrives, or from a provision that if a particular event shall happen, the interest shall pass on to another person.
21. Contingent interest-Where, on a transfer of property, an interest therein is created in favour of a person to take effect only on the happening of a specified uncertain event, or if a specified uncertain event shall not happen, such person thereby acquires a contingent interest in the property. Such interest becomes a vested interest, in the former case, on the happening of the event, in the latter, when the happening of the event becomes impossible.
Exception.-Where, under a transfer of property, a person becomes entitled to an interest therein upon attaining a particular age, and the transferor also gives to him absolutely the income to arise from such interest before he reaches that age, or directs the income or so much thereof as may be necessary to be applied for his benefit, such interest is not contingent.
38. From the provisions of Sections 19 and 21 of the Transfer of Property Act, 1882, it is elucidated that an interest can be said to be a vested interest, where there is immediate right of present enjoyment or a present right for future enjoyment. An interest can be said to be contingent if the right of enjoyment is made dependent upon some event which may or may not happen. On the happening of the event, a contingent interest becomes a vested interest.
39. With reference to the distinction between the terms ''Settlement'' and ''Will'', His Lordship has observed in Paragraph No. 13 as under:
"13.....Although, no strait-jacket formula has been evolved for construction of such instruments, the consistent view of this Court and various High Courts is that while interpreting an instrument to find out whether it is of a testamentary character, which will take effect after the life time of the executant or it is an instrument creating a vested interest in praesenti in a whole, look into the substance thereof, the treatment of the subject by the settlor/executant, the intention appearing both by the expressed language employed in the instrument and by necessary implication and the prohibition, if any, contained against revocation thereof. It has also been held that form or nomenclature of the instrument is not conclusive and the Court is required to look into the substance thereof."
40. In an another decision in
"Will-Settlement-Distinction-Where there is absolute and instantaneous transfer of interest in praesenti to beneficiary and where there is absolute or complete disinvestment of right, title, interest of executant on date of execution it is settlement-Absolute and instantaneous transfer of interest in favour of beneficiary is settlement-Where conferment of right is postponed till life-time of executant and beneficiaries will get interest after life-time of executant it is Will-Description of document is immaterial to determine whether particular document is in nature of Will or Settlement."
41. On coming to the instant case on hand, the intention of the executors viz., defendants 1 and 2 has to be taken into consideration and accordingly Ex. A1 though it has been styled as Settlement Deed, whatever may be the nomenclature, places of a testamentary character, which would take effect after the lifetime of the executants and therefore it cannot be construed as an instrument creating a vested interest in praesenti in favour of Nallamma Reddy, who is predeceased the executants. The reason for this conclusion is, the conferment of right is postponed till the life-time of the defendants 1 and 2 and the beneficiary viz., Nallamma Reddy will get interest only after the life-time of the executants viz., defendants 1 and 2.
42. Keeping in view of the above facts, this Court has endorsed the view of the First Appellate Court to say that Ex. A1(B1) is a Will and not a Settlement Deed.
43. Substantial Question of Law No. 2:
On appreciation of the evidences both oral and documentary, it has been substantiated that the appellants are not in exclusive possession of the suit property. On the other hand, their possession is in joint along with the respondents/defendants 1 and 2. When such being the case, they cannot maintain the suit for permanent injunction as they have miserably failed to establish the prima facie case. Since the balance of convenience is in favour of the respondents/defendants, this Court finds that the Courts below are absolutely right in denying the relief of injunction in favour of the appellants and equally they cannot maintain the suit as against the fourth respondent being a Government Authority.
44. On verification of the records, it is found that no statutory notice, as required under Section 80(1) of the Code of Civil Procedure, was issued to the fourth respondent, who represents the Government.
45. Section 79 C.P.C., contemplates suits by or against Government. It envisages that:
In a suit by or against the Government, the authority to be named as plaintiff or defendant, as the case may be, shall be-
(a) in the case of a suit by or against the Central Government, (the Union of India), and
(b) in the case of a suit by or against a State Government, the State.
46. Section 80(1) C.P.C., enacts that: Save as otherwise provided in sub-section (2), no suit shall be instituted against the Government (including the Government of the State of Jammu and Kashmir) or against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been delivered to, or left at the office of-
(a) ............
(b) ............
(bb) ...........
(c) in the case of suit against [any other Stat Government], a Secretary to that Government or the Collector of the district; and, in the case of a public officer, delivered to him or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left.
47. In case there is any urgency in getting a prohibitory order, if the Court satisfies, with the sufficient reason, which may be shown by the plaintiff, it may dispense with the issuance of the statutory notice, under Section 80(1) C.P.C., as contemplated under sub-section (2) of Section 80.
48. Sub-section (2) to Section 80 C.P.C., reads as under:
(2) A suit to obtain an urgent or immediate relief against the Government (including the Government of the State of Jammu and Kashmir) or any public officer in respect of any act purporting to be done by such public officer in his official capacity, may be instituted, with the leave of the Court, without serving any notice as required by sub-section (1); but the Court shall not grant relief in the suit, whether interim or otherwise, except after giving to the Government or public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit.
Provided that the Court shall, if it is satisfied, after hearing the parties, that no urgent or immediate relief need be granted in the suit, return the plaint for presentation to it after complying with the requirements of sub-section (1).
49. Apart from this, as envisaged under Order XXVII Rule 5A C.P.C., where a suit is instituted against a public officer for damages or other relief in respect of any act alleged to have been done by him in his official capacity, the Government shall be joined as a party to the suit.
50. On coming to the instant case on hand, proper Government Authority has not been joined as a party to the suit. Therefore, the suit as against the fourth respondent cannot be maintained without following due procedures as enumerated above. In the result, both the second appeals are dismissed and the Judgment and Decree, dated 29.09.2004, and made in A.S. No. 225 of 2002, on the file of the learned II Additional Subordinate Judge, Madurai, confirming the Judgment and Decree, dated 02.07.2002, and made in O.S. No. 205 of 2000, on the file of the learned District Munsif, Madurai, are confirmed. Consequently, connected miscellaneous petitions are closed. No costs.
