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CASE NO.: Appeal (civil)  4740 of 1999

PETITIONER: Commissioner Hindu Religious & Charitable Endowment

RESPONDENT: P Shanmugama & Ors.

DATE OF JUDGMENT: 10/01/2005

BENCH: Shivaraj V. Patil & B.N. Srikrishna

JUDGMENT: J U D G M E N T  

Srikrishna, J.

                One Ponnu Iyer alias Viruddeswara Sivacharya had purchased  large extent of land and properties. One of such properties was Door  no.278, West Car Street, Tirunelveli.  In 1960 the second respondent  who was  Madathipathi of "Meda Madam" and the Kartha of family  filed O.A. No.74/60 before the Deputy Commissioner of the Hindu  Religious and Charitable Endowment under section 63(a) of the Hindu  Religious and Charitable Endowment Act, to declare the property  mentioned above  as his personal property and not belonging to a  religious institution.  This application was rejected by the Deputy  Commissioner. An  appeal carried by the second respondent to the  Commissioner was also rejected.  In 1969 the second respondent filed a  statutory suit being OS No.133/69 before the Sub-Judge, Tirunelveli  seeking a declaration that the property was his private property. This  suit was also dismissed by the Sub-Judge holding that the property  belonged to the "Mela Madam" a religious institution.  The appeal  carried to the High Court vide A.S.No.640/1971 was also dismissed.  The second respondent thereafter continued to maintain records as  directed by the concerned authorities and submitted to the jurisdiction  of the Hindu Religious and Charitable Endowment Act with  respect to  all the properties belonging to the Mela Madam.   

In the year 1978, after the first respondent attained the age of  majority he filed a suit for declaration that the properties described in  schedule A,B and C  of the plaint were his ancestral properties, and in  view of the oral partition which was subsequently registered, he was  entitled to B schedule properties. He, therefore, sought a decree for  partition of the ancestral properties and a declaration that the ’B’  schedule properties exclusively belonged to him and sought  consequential injunction.

       This suit was opposed, inter alia, by the Commissioner, Hindu  Religious and Charitable Endowment (appellant before us and the 4th  defendant in the suit).

       The appellant contended in the suit that the suit properties were  endowed properties and that the character of properties had been  affirmatively declared as one belonging to a religious institution. He  contended that the second respondent, who had not succeeded in his  earlier attempt to grab the property, had now set up the first respondent  to commence a second round of litigation for the same purpose.          The trial court accepted the contentions of the plaintiff and  granted a preliminary decree as sought for in the plaint. The present

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appellant preferred an appeal against the trial court judgment in O.S.  No. 228/78.  The first appellate court, the District Judge, Tirunelveli  allowed the appeal, and dismissed the suit of the 1st respondent.  The  first respondent brought second appeal No.S.A.No.2105 of 1983 before  the High Court. The High Court in a lengthy judgment reversed all the  findings of facts recorded by the 1st appellate court, set aside the  judgment of the first appellate court and decreed the suit. Hence this  appeal by special leave.          At the very outset, we notice that, though the High Court was  deciding the second appeal under section 100 of the Code of Civil  Procedure, it failed to act in accordance with the requirements of  section 100. It is trite law that under section 100 of the CPC a High  Court can entertain a second appeal only if the High Court is satisfied  that the case involves a substantial question of law. Sub-section (4) of  section 100 provides that where the High Court is satisfied  that a  substantial question of law is involved in any case, it shall formulate  that question. Sub-section (5) stipulates that the appeal shall be heard  on the question so formulated and the respondent shall at the hearing of  the appeal be allowed to argue that the case does not involve such  question.  The mandatory requirements of this provision of law have  been totally flouted by the High Court. The High Court has not  indicated in the long judgment as to which was the substantial question  of law, if any, considered, nor has it formulated the substantial question  of law on which the decision in the second appeal was being given.   The High Court has proceeded as if it were deciding a first appeal  against a decree in original proceedings. On this ground alone the  judgment is liable to be interfered with.          When the appeal was argued before us, we repeatedly called  upon the learned counsel for the respondent to satisfy us as to the  substantial question of law which could have given jurisdiction to the  High Court to entertain and adjudicate the second appeal. The learned  counsel replied that the question of interpretation of the documents  placed on record was such a substantial question of law.   We are not  satisfied that this was so.  Nonetheless we permitted the learned  counsel on both sides to make detailed submissions since the present  appeal had already been admitted.          The first appellate court formulated the points for determination  in the two appeals and the cross objection in AS No.139 of 1981 as  under: 1.      Whether the plaint ’A’ schedule properties are  the joint family  properties of defendants 1 and 2  and the plaintiffs ?

2.      Is the plaintiff entitled to declaration of title  over plaint ’B’ Schedule lands and for paramount  injunction against the defendants 4 and 5 in respect  of those lands?

3.      Whether the suit properties belong to Mela  Madam ?

4.      Is the suit barred under Section 108 of Tamil  Nadu Act 22 of 1959 and more particularly in  respect of plaint "A’ schedule items 1 and 2  comprised in Door No.278 ?

5.      Whether the 1st defendant and his sons namely  the plaintiff and 2nd defendant are estopped from  contending, that the suit properties do not belong to  Mela Madam ?"

       After considering the manner in which the ancestors of the

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plaintiff had dealt with the properties, particularly with regard to  the documents placed on record, the first appeal court divided the  consideration into 5 periods, namely, from 1845 to 1881, 1882 to  1927, 1927 to 1934, 1934 to1943 and 1943 to 1968.   

Upon a careful consideration of the documents, the first  appellate court came to the conclusion that it was only in 1960  that the first respondent before us claimed for the first time that  the property Door no.278, West Car Street, Tirunelveli, belonged  to him personally.  At no time earlier had any of his predecessor  claimed or dealt with the properties as their own and individual  or private properties.  The first appellate court found that on the  other hand the documents executed throughout the relevant five  periods gave a reasonable impression that the properties were  always treated as that of the ’Mela Madam’.  The first appellate  court rightly pointed out that the word "Madam" has been used in  the documents right from 1845 and had to be given importance  and cannot be lightly brushed aside.  It was rightly emphasized  by the appellate court that the so called documents of oral  partition had come into existence only during the pendency of the  proceeding before the Deputy Commissioner, Hindu Religious &  Charitable Endowment wherein the father of the first respondent  had claimed the property bearing  Door no.278, West Car Street,  Tirunelveli, as his private property. It noticed that the  proceedings before the Deputy Commissioner had also ended in  favour of the Hindu Religious and Charitable Endowments  department.

The first appellate court, therefore, recorded a clear  conclusion : "thus, neither the oral evidence nor the documentary  evidence adduced on the side of the plaintiff prove, that these suit  properties are the secular or private properties of 1st defendant’s  family for granting partition relief in respect of  plaint ’A’  schedule buildings and for declaration of title and consequential  relief of permanent injunction in respect of plaint ’B’ Schedule  lands in favour of the plaintiff".

The first appellate court noticed that in a situation where  the Hindu Religious and Charitable Endowment department was  called upon to prove that the properties had been endowed more  than 100 years ago it was not possible for them to prove it by  direct evidence that there was any gift or settlement to the  Madam.  In the circumstances, the first appellate court rightly  relied on the fact of possession of the properties and their  dealings by the other  respondents.  The father of the first  respondent who was the first defendant in the suit had filed a  written statement supporting the case of the plaintiff.  The first  appellate court justifiably held that he was really in the position  of a co-plaintiff, though ranking as the first defendant. The first  defendant had proclaimed himself as a Mathadipati by printing an  invitation (Ex.B-5) for the assumption of office by him. It was  also noticed that Ex. B-1 property register had been maintained  from 1946 by the first defendant and the said register was a  statutory register maintained under Tamil Nadu Act 22/1959, in  which all the properties were mentioned as belonging to the  Madam.   The conspicuous failure of the first defendant the father  of the plaintiff to come forward and explain this Exhibit B-1  property register maintained and signed by him was a fact held as  fatal to the case sought to be made out in the present suit.  

These were some of the salient findings made by the first  appellate court. We have referred to them briefly to indicate that  the first appellate court was not concerned with the construction  of a document like a will or sale deed only, but was concerned  with appreciation of oral and documentary evidence over the

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period from  1846 to 1968. Upon appreciation of the evidence  before it, the first appellate court recorded a number of findings,  which have to be accepted.

In our view, the High Court has no jurisdiction in the  second appeal to interfere with the finding of facts recorded by  the first appellate court after careful consideration of the  evidence, oral and documentary on record.  It was not open to the  High Court to reverse the findings of facts as it has done. Even  otherwise, we are satisfied that the findings recorded by the first  appellate court were justified and there was no scope for  interference therewith.

In the result, we hold that the impugned judgment is  without jurisdiction and also otherwise erroneous. Consequently,  we allow this appeal, set aside the impugned judgment of the  High Court and restore the judgment of the District Judge,  Tirunelveli in appeal No.139/81, 13/82 and the cross objections  filed in AS No.130/81. The first and second respondents shall pay a sum of  Rs.10,000/- as costs to the appellant.