High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDate: 12.04.2007CORAM:THE HON'BLE MR. JUSTICE P.JYOTHIMANISecond Appeal Nos.542 & 1570 of 1995SA 542/95Kamaruddin Saheb ... Appellant/2nd DefendantVs.1.K.T.Palaniappa Nadar (Died)2.K.B.Pandiyan3.Selvi4.District Collector of South Arcot,Vallalar District,Collectorate Building, ManjakuppamCuddalore. NT5.K.P.Senguttuvan6.K.P.Moorthy7.K.P.Cheran8.KalaichelviR5 to R8 are brought on record as L.R's.of the deceased 1st respondent vide order of court dated 15.09.2003made in C.M.P.No.3373 of 1998SA 1570 of 1995The District Collector of South ArcotVallalar District having officeat the Collectorate BuildingsManjakuppam Cuddalore NT.. Appellant (First Defendant)Vs1.K.T.Palaniappa Nadar (Died)2.K.B.Pandiyan3.Selvi4. S. Kamardeen Sahib5.K.P.Senguttuvan6.K.P.Moorthy https://hcservices.ecourts.gov.in/hcservices/

7.Tmt Kalaichelvi8.K.P.Cheran.. Respondents (Plaintiff and 2nd Defendant)R5 to R8 are brought on record as L.R's.of the deceased 1st respondent vide order of court dated 23.03.2007made in C.M.P.No.10361 to 10363/06PRAYER IN S.A.No.542 of 1995: Second Appeal against the Judgmentand decree dated 06.01.1995 in A.S.No.162 of 1993 on the file ofSub Court, Cuddalore reversing the judgement and decree dated20.04.1993 in O.S.No.373 of 1989 on the file of the AdditionalDistrict Munsif Court, Cuddalore.PRAYER IN S.A.No.1570 of 1995: Second Appeal against the Judgmentand decree dated 06.01.1995 made in A.S.No.162 of 1993 by thelearned subordinate Judge, Cuddalore. Reversing the Judgment andDecree dated 20.04.1993 in OS No. 373 of 1989 on the file of theAdditional District Munsif Court, Cuddalore. For Appellant: Mr.R.Subbaiah Spl.Government Pleader(CS) in S.A.No.1570 of 1995 andR4 in S.A.No.542 of 1995 Appellant M/s.K.Kannan for Mr.R.Yashod Vardhan for Appellant in SA 542/95 and for R4 in S.A.No.1570 of 1995 For Respondents: Mr.S.V.Jayaraman, S.C.for M/s.B.Soundarapandian for R2,R3 and R5 to R8 in both appeals COMMON JUDGEMENTThe first and second defendants in O.S.No.373 of 1989 havefiled the Second Appeal No.1570 of 1995 and 542 of 1995respectively. Respondents 1 to 3 have filed the suit inO.S.No.373 of 1989 against the appellant District Collector inSecond Appeal No.1570 of 1995 and 542 of 1995 arraying them asdefendants 1 and 2 respectively praying for a declaration of titlein respect of the suit properties and delivery of possession. Thesuit property consisting of six items of punja lands stating thatthey belonged to one Periyasamy Nadar and his two sons, namely,Balamuruga Nadar who is the father of the second plaintiff andPalaniyappa Nadar. The first plaintiff is also the son of https://hcservices.ecourts.gov.in/hcservices/ Periyasamy Nadar. The said Periyasamy Nadar as well asBalagurusamy Nadar have died and his son is the second plaintiff.2. According to the plaintiffs, the said Periyasamy Nadarand his sons Palaniyappa Nadar and Balagurusamy Nadar haveexecuted a settlement deed on 24.06.1953 marked as Ex.A.1 infavour of the then District Board. The said property is nowtransferred in the name of the District Collector, appellant inS.A.No.1570 of 1995 and under the said settlement deed theproperty was given to the District Board for the purpose ofstarting a High School and the same was accepted by the DistrictBoard in the resolution dated 27.06.1953 marked as Ex.A.2.However, the purpose for which the property was given in favour ofthe first defendant was not given effect to and school was notstated. 3. On the other hand, the District Board has purchased someother property in the same area and started a school. Therefore,the purpose for which the property was given has not been effectedand it remains a vacant land. In those circumstances, the firstplaintiff has requested the first defendant to return the propertyby a letter dated 08.04.1983. The first defendant by reply dated23.05.1953 marked as Ex.A.3 directed the first plaintiff toapproach the District Revenue Officer to get back the property.In spite of his efforts the property was not returned. TheTahsildar of Cuddalore by his letter dated 30.08.1983 marked asEx.A.4 addressed to the first defendant stated that the propertyis not used for any other purpose and therefore, the same can begiven to the plaintiff. Thereafter, the plaintiffs have givennotice for possession and ultimately the plaintiffs haveapproached this Court by filing W.P.No.8631 of 1985 in which by anorder dated 23.08.1985 marked as Ex.A.8, this Court having foundthat for 32 years the purpose for which the property was given,has not been achieved and therefore, it is open to the plaintiffsto approach the Civil Court and with that observation the writpetition was dismissed stating that the dismissal shall not beconstrued against the plaintiff. 4. It was thereafter, the first plaintiff by a documentdated 06.09.1985 marked as Ex.A.9 has revoked the settlement deedand informed the same to the first defendant. The seconddefendant who is in occupation of a portion of the said propertyis not entitled to be in possession and therefore, the presentsuit is filed for a declaration and possession. The firstdefendant has resisted the suit stating that even though it istrue that no school has been constructed and another school hasbeen started in another place which requires extension andtherefore, the first defendant proposes to use the suit propertyfor the same purpose. The first defendant denies the possessionin favour of the second defendant and it is the case of the first https://hcservices.ecourts.gov.in/hcservices/ defendant that they are in possession of the entire property andthe revocation of settlement deed is not valid. The seconddefendant has also filed a written statement in the same line. 5. The Trial Court after elaborate trial has dismissed thesuit holding that the settlement deed marked as Ex.A.1 cannot berevoked under Ex.A.9 and the plaintiffs themselves have notapproached the Civil Court for the purpose of cancellation of thesettlement deed and therefore, the plaintiffs are not entitled fordeclaration and possession. Aggrieved by the said judgement ofthe Trial Court the plaintiffs filed the First Appeal. The FirstAppellate Court has allowed the appeal and granted a decree in thesuit by directing the respondents to surrender vacant possessionto the plaintiffs. It was as against the said judgement the firstand second respondents in the first appeal have filed the abovesaid two appeals. 6. While admitting the said appeals the followingsubstantial questions of law were framed in S.A.No.1570 of 1995and 542 of 1995:Questions of Law in S.A.No.542 of 1995"Whether the lower appellate court is correct inholding that in view of the revocation of thesettlement deed executed in favour of the Governmentthere exists no need for considering the plea ofadverse possession taken by the defendant all through?"Question of Law in S.A.No.1570 of 1995"1. Whether the suit for declaration of plaintiffs'title and recovery of possession of the suit propertyis maintainable without there being a regular suit toset aside the settlement deed dated 24.06.1953 by theplaintiffs?2. Whether the unilateral revocation of the settlementdeed by the plaintiffs would be binding on theappellant?3. When there is no time limit fixed for theconstruction of the school building, whether the FirstAppellate Court was correct in holding that theconditions imposed in the settlement deed have not beencarried out?"7. It is seen that while the first defendant in the suitbased on the original settlement deed dated 24.06.1953 marked asEx.A.1 claims to be in possession of all the six items ofproperties, the second defendant who is the appellant in SecondAppeal No.542 of 1995 claims to be in possession of a portion,namely, in item No.6 of the suit properties, of course claimingtitle on the basis of adverse possession. The First Appellate https://hcservices.ecourts.gov.in/hcservices/ court since relied upon the revocation deed executed by the firstplaintiff, dated 06.09.1985 marked as Ex.A.9 revoking the earliersettlement deed, namely, Ex.A.1 and therefore, has come to aconclusion that there is no need to consider the plea of adversepossession pleaded by the second defendant, has also passed adecree against the second defendant also.8. Mr.R.Subbiah, learned Special Government Pleaderappearing for the appellants in Second Appeal No.1570 of 1995would submit that inasmuch as Ex.A.1 settlement deed remains agift as admittedly accepted by the donees as seen in the plaintitself, the revocation or suspension of such gift will arise onlyif the donor and donee agree to revoke or suspend on the happeningof a specified event which does not depend on the donors will. Hewould also state that as per Section 126 of the Transfer ofProperty Act, except in the circumstances mentioned therein asstated above and also in case of rescission, a gift cannot berevoked. He would also rely upon Section 33 of the Transfer ofProperty Act, to contend that inasmuch as there is no time limitprescribed under Ex.A.1 for the purpose of implementing thepurpose for which the property was transferred and the firstdefendant has not taken any decision for the purpose of making thepurpose impossible since they desire to use it for the samepurpose, there was no question of revocation of Ex.A.1. 9. He would also submit that Ex.A.1 does not contain any clausefor the purpose of revocation and there was no agreement forrevocation on the happening or non happening of a specified eventand therefore, Section 126 of the Transfer of Property Act, willnot apply. To substantiate his contention he would rely upon thejudgements reported in AIR 2003 H.P. 107, AIR 2002 Madras 1 andAIR 1986 Kerala 11010. On the other hand, Mr.K.Kannan, learned counselappearing for the appellant in the Second Appeal in S.A.No.542 of1995 has contended that the second defendant is in possession of aportion of item 6 of the schedule property. While item 6 is tothe extent of 20 cents the second defendant is in occupation of 8cents, as it is stated in the plaint while in the writtenstatement the second defendant himself claimed a lesser extent andhe also claims adverse possession on the basis of variousdocuments which are filed under Exs.B.1 to B.20 etc. to show thathe has been in possession for a long period and even before hisbirth his predecessors in title have been in possession for whichhe has also examined witness on his side as D.W.4. 11. He would also submit that as far as the second defendantis concerned since he has been in possession for many years andhis predecessors have been in possession even before his birth, it https://hcservices.ecourts.gov.in/hcservices/ is not necessary that he should be in possession to the knowledgeof the true owner as long as his possession is hostile andnotorious and exclusive in its character, since the requirement ofadverse possession must be continuity and publicity and in extentand therefore, by relying upon the judgement of the Division Benchof this Court in 1998 LW 606, he would argue that he need notrecognize the right of the plaintiff and the very fact that he hasbeen enjoying the property publicly with animosity is sufficientto prove his possession. 12. On the other hand, Mr.S.V.Jayaraman, learned SeniorCounsel appearing for the respondents in these appeals who werethe plaintiffs would submit that as far as the 2nd defendant'spossession is concerned it is not with an intention to possess andtherefore, the requirement of animus possidendi is lacking.According to him under Section 77(c) of the Indian Trust Act, theplaintiffs have a right to revoke trust as long as it is admittedby the first defendant that for nearly 35 years they have not usedthe property for the purpose for which it was entrusted to them.He would also submit that by the conduct of the first defendant inputting up the school in some other place amounts to frustrationof the very object of the trust. He would submit that theproperty has been entrusted for a public purpose and inasmuch asthe purpose has not been accomplished, under Section 77(c) of theIndian Trust Act, 1882, the trust stands extinguished. To supporthis contention he would also rely upon the judgement reported inAIR 1923 Lahore 93. 13. It is not in dispute that under Ex.A.1 settlement deedthe six items of properties have been gifted to the firstdefendant for the purpose of construction of a High School. It isalso true that the said document does not stipulate any conditionfor the purpose of cancellation and no time limit has been fixedfor the purpose of putting up the construction. In suchcircumstances, the contentions raised by the appellants especiallythe District Collector is based on Section 126 of the Transfer ofProperty Act. It explains the circumstances where a gift maysuspended or revoked. The said Section, which reads as follows: "126. When gift may be suspended or revoked.- The donorand donee may agree that on the happening of anyspecified event which does not depend on the will of thedonor a gift shall be suspended or revoked; but a giftwhich the parties agree shall be revocable wholly or inpart, at the mere will of the donor, is void wholly orin part, as the case may be.A gift may also be revoked in any of the case (savewant or failure of consideration) in which, if it were acontract, it might be rescinded. Save as aforesaid, a gift cannot be revoked.Nothing contained in this section shall be deemed https://hcservices.ecourts.gov.in/hcservices/ to affect the rights of transferees for considerationwithout notice."14. Therefore, under the said section both the donor anddonee can revoke a gift on the happening of a specified event,which is not exclusively within the domain of the donor or incases where there is rescission of contract. Except in these twocases gift cannot be revoked. A reading of Ex.A.1 shows thatthere is no stipulation that on the happening of specified event,namely, that if the first defendant fails to put up a constructionof a school the gift can be revoked. 15. The term gift is defined under Section 122 of theTransfer of Property Act as "Gift is a transfer of certain existing movable orimmovable property made voluntarily and withoutconsideration, by one person, called the donor, toanother, called the donee and accepted by or on behalfof the donee."16. Therefore, by construing Ex.A.1 which has no doubt beenaccepted by the donee, namely, the first defendant since theproperty has been given for public purpose as per the requirementof the Transfer of Property Act, there is no difficulty to come tothe conclusion that the transfer by way of gift has been effectedand there is no agreement between the donor and donee for thepurpose of revocation on the happening of a specified event. Oneother circumstance, under which a gift can be revoked underSection 126 of the Transfer of Property Act, is when the contractof gift is rescinded. The term "rescission" is used under theIndian Contract Act, as one of the circumstances under which byagreement between parties the obligation need not be performed.The said Section 62, which runs as follows: "62. Effect of novation, rescission, and alteration ofcontract.- If the parties to a contract agree tosubstitute a new contract for it, or to rescind or alterit, the original contract need not be performed."17. For the purpose of effecting rescission, wherein theparty to the contract can be permitted not to perform hisobligation under the terms of the contract which includes theother specie, namely, novation and alteration. The same must bebased on the consensus between the parties to the contract, whichmay arise either by the subsequent agreement between the partiesor a new contract can be created or the old obligation can bedispensed with. That was the decision given by the Hon’bleSupreme Court in City Bank, N.A. Vs. Standard chartered Bank andothers reported in 2004(1) SCC 12. Therefore, on the face of itthere is no difficulty to come to the conclusion the said Section https://hcservices.ecourts.gov.in/hcservices/ 63 of the Indian Contract Act which arises on the consensusbetween the parties to the contract was distinguished by theHon’ble Supreme Court to Section 62 wherein one of the parties canact unilaterally. The operative portion of the judgement of theHon’ble Supreme Court is as follows: "47. Novation, rescission or alteration of a contractunder Section 62 of the Indian Contract Act can only bedone with the agreement of both the parties of acontract. Both the parties have to agree to substitutethe original contract with a new contract or rescind oralter. It cannot be done unilaterally. The SpecialCourt was right in observing that Section 62 would notbe applicable as there was no novation of the contract.Further, it is neither Citi Bank's nor CMF's case noreven SCB's case that there was a tripartite arrangementbetween the parties by which CMF was to accept theliability. Such a case of novation does not arise forconsideration. Shri Andhyarujina, the learned SeniorCounsel for Citi Bank has also not seriously pressed forCiti Bank's case being considered by reference toSection 61 abovesaid."18. Therefore, it is clear that both the factors ascontemplated under Section 126 of the Transfer of Property Act,for the purpose of revocation of Ex.A.1 are not available in thiscase. 19. On the other hand the learned First Appellate Judge hasdecided the issue in favour of the plaintiffs based on Section 77of the Indian Trust Act. It is no doubt true that under theIndian Trust Act Section 3, while deciding about the trust statesthat it is "an obligation annexed to the ownership of propertiesand arising out of a confidence reposed in and acceptedby the owner or declared and accepted by him for thebenefit of another or another and the owner"and that under Section 77 of the Indian Trust Act, the trust isextinguished "a) When its purpose is completely fulfilled or b) When its purpose becomes unlawful or c) When fulfillment of its purpose becomes impossible bydestruction of the trust property or otherwise or d) When the trust being revocable is expressly revoked."20. Admittedly even assuming that the pleading is a trustand there is an entrustment for a purpose the present situationwill not be suited to the first, second and fourth category and ifat all there is any iota of application it will be under Section https://hcservices.ecourts.gov.in/hcservices/ 77(C) where it may be said that the purpose becomes impossible bydestruction of the trust property or otherwise. 21. In the present case it is not even the case of theplaintiffs that the property has been destroyed by the firstdefendant. Therefore the first portion of the 77(c) does notapply. But the only remaining word is "otherwise" that means thefulfillment of purpose becomes impossible otherwise. It is on thebasis of this term the learned First Appellate Judge has assumedthat the object of trust for which it was entrusted has not beencompleted and therefore has come to a conclusion that there is aextinguishment of trust under Section 77 of the Act. I do notthink that the present situation can be effected with any one ofthe four circumstances under Section 77 of the Indian Trust Act.Even assuming that a trust has been created in this case, inasmuchas there is no time limit prescribed under Ex.A.1 for the purposeof building up a High school for public purpose as it was intendedby the settlers under Ex.A.1 I do not think that the trust standsextinguished. In any event it is not even the pleadings of theparties that under Ex.A.1 a trust has been created. Therefore,the decision arrived by the first Appellate Court is wrong and notwith proper reasoning.22. On the other hand it has been the specific case of theparties that it is a gift given voluntarily for a specifiedpurpose and the same has been accepted. In the absence of anytime limit given under Ex.A.1 for the purpose of the object of thegift to be achieved and in the absence of the application ofSection 126 of Transfer of Property Act, I do not think that theconduct of the plaintiffs in revoking Ex.A.1 settlement deed by arevocation deed dated 06.09.1985 under Ex.A.9 is valid in law. Inany event as it is correctly pointed out by the learned counselfor the appellants, the plaintiffs has not even come to the Courtfor the purpose of declaration that the gift has become void andunilateral decision taken by them under Ex.A.9 is not permissiblein law. 23. It is in this regard relevant to point out thepronouncement of the legal position by this Court rendered in KasiGounder Vs. Chinnapaiya Gounder reported in AIR 2002 Madras 1wherein while referring to Section 126 of the Transfer of PropertyAct, this Court has held as follows: "18. It is also evidently clear that the settlementdeed was duly executed by Manickam Ammal in favour ofthe plaintiff under Ex.A.4 and when once it has beenexecuted, she has no power to cancel the same. Evenassuming that the plaintiff had failed to maintain heras contended in the revocation deed, I am of the view,it is not a ground to revoke the document. Under the https://hcservices.ecourts.gov.in/hcservices/ circumstances, the reliance upon the subsequentsettlement deed by the defendant in his favour is of nouse. Hence, the lower appellate Court rightly came tothe conclusion that the plaintiff has got title to theproperty and under the circumstance, the plaintiff isalso entitled to recovery of possession."24. A similar view was taken by the Himachal Pradesh HighCourt in Thokha Vs. Smt.Biru and others reported in AIR 2003H.P.107 wherein also while referring to Section 126 of theTransfer of Property Act, the High Court has held as follows: "22. In the case in hand there is no specificcondition either for giving maintenance or for revokingof the gift deed in case services are stopped to berendered by the donee. Anyway, the fact remains, ashas been stated in the deed of gift that the gift wasin lieu of services meaning thereby that the donee hadto render services to the donor-plaintiff but in theabsence of any specific condition in the event offailure of the donee to render services, the gift couldnot be revoked. Thus, the deed of gift Ext.D.1 ifconsidered as an outcome of general law cannot be saidto be revocable one when no specific condition for itsrevocation has been made in the deed itself in theevent of failure of the donee to provide services tothe donor or maintain the donor, the gift cannot berevoked."25. The reliance placed on by the learned Senior Counsel for therespondents, on the judgement of the Lahore High Court in Gela RamVs. The District Board, Muzaffargarh reported in AIR 1923 Lahoore93 is not applicable to the facts of the case, since that was thecase wherein the land given for a public purpose was sold by thepublic authority to the third parties and in those circumstancesby invoking Section 77(c) of the Indian Trust Act, it was heldthat when a property was given for a public Highway no buildingcan be put up on it or by way of sale to third parties. https://hcservices.ecourts.gov.in/hcservices/

26. In view of the above said facts I am of the consideredview that the learned First Appellate Judge has not appreciatedthe legal position as per the Transfer of Property Act and theTrust Act in their proper perspective and therefore, the judgementand decree of the First Appellate Court is set aside and theSecond Appeals stand allowed. No cost. NbjSd/Asst.Registrar/true copy/Sub Asst.RegistrarToThe Subordinate JudgeCuddalore2. The Additional District MunsifCuddalore3. The Record Keeper, VR Section, High CourtMadas+2cc to Mr. B. Sankarapandian, Advocate sr no. 23712+ one cc to Mr. R. Yashod Vardhan, Advocate sr no. 23790+ one cc to the Government Pleader sr no. 23851vc(Co)nm(13.08.07)S.A.Nos.542 & 1570 of 1995