(Prayers: Appeal Suit filed under Order 41 Rules 1 and 2 r/w. Section 96 of Civil Procedure Code, to call for records in O.S.No.356 of 2004 on the fie of IV Additional District Judge, Madurai and set aside the lower Court judgment and decree dated 03.03.2018 passed in O.S.No.356 of 2004 by the learned IV Additional District Judge, Madurai by allowing the appeal.

Appeal Suit filed under Section 96 of Civil Procedure Code, to set aside the judgment and decree dated 03.03.2018 passed in O.S.No. 356 of 2004 by the learned IV Additional District Judge, Madurai.

Appeal Suit filed under Order 41 Rules 1 and 2 r/w. Section 96 of Civil Procedure Code, to set aside the judgment and decree dated 03.03.2018 passed in O.S.No.356 of 2004 by the learned IV Additional District Judge, Madurai.

Appeal Suit filed under Order 41 Rules 1 and 2 r/w. Section 96 of Civil Procedure Code, to set aside the judgment and decree dated 03.03.2018 passed in O.S.No.356 of 2004 by the learned IV Additional District Judge, Madurai.)

Common Judgment

G.R. Swaminathan, J.

1. Heard the learned counsel for the appellants and the learned counsel for the plaintiff.

2. It is not in dispute that the suit schedule property belongs to Samyakone Trust. The appellants herein had purchased the respective items (Item Nos.6, 1, 3, and 4) from defendants 1 and 2. The defendants 1 and 2 projected themselves as trustees of the suit trust and in that capacity, they had alienated the aforementioned items to the respective appellants. The plaintiff is admittedly one of the trustees and representing the trust, he filed O.S.No.834 of 1992 on the file of the I Additional Sub Court, Madurai (re-numbered as O.S.No.356 of 2004 on the file of the IV Additional District Court, Madurai) seeking the relief of declaration that the aforesaid alienations are null and void and for recovery of possession. The appellants herein filed written statements setting up title in themselves. Based on the rival pleadings, the Court below framed the following issues:-

               “1.Whether the 1st defendant is the wife of Thirumalaimuthu Kone?

               2. Whether the 2nd defendant is the son of Thannakutti Kone?

               3. Whether the contention of the first defendant that she was appointed as the trustee of Samayakone Trust by the Will dated 26.05.1982 is acceptable?

               4. Whether the Sale Deed dated 07.02.1990 executed by the defendants 1 and 2 in respect of item No.1 is void and not binding on Samayakone Trust?

               5. Whether the Sale Deed dated 09.11 1991 executed by the defendants 4 to 16 in respect of item No.2 is void and not binding on Samayakone Trust?

               6. Whether the sale deeds dated 22.03.1988 and 23.03.1988 executed by the defendants 1 and 2 in respect of item No.3 are void and not binding on Samayakone Trust?

               7. Whether the Sale Deed dated 28.11.1988 and release deed dated 27.12.1988 executed by the defendants 1 to 16 in respect of item No.4 is void and not binding on Samavakone Trust?

               8. Whether the sale deeds dated 07.12.1988 and 15.10.1991 executed by the defendants 1 to 16 in respect of item No.5 are void and not binding on Samayakone Trust?

               9. Whether the Sale Deed dated 22.03.1990 executed by the defendants 1 and 2 in respect of item No.6 is void and not binding on Samayakone Trust?

               10. Whether the Sale Deed dated 22.03.1990 executed by the defendants 1 and 2 in respect of item No.7 is void and not binding on Samayakone Trust?

               11. Whether the Sale Deed dated 22.03.1990 executed by the defendants 1 and 2 in respect of item No.8 is void and not binding on Samayakone Trust?

               12. Whether the suit is bad for non-joinder of necessary parties to the suit?

               13. Whether the suit is barred by limitation?

               14. Whether the alleged dedication of the suit properties of Samayakone Trust is complete as alleged by the plaintiff or partial one as alleged by the defendants?

               15. Whether the suit is hit by Section 11 of the Transfer of Property Act?

               16. To what relief, if any?”

3. On the side of the plaintiff, three witnesses were examined and Exs.A1 to A33 were marked. On the side of the defendants, the defendants 20 and 87 examined themselves as D.W.1 and D.W.2 and Exs.B1 to B12 were marked. After considering the evidence on record, the trial Court decreed the suit as prayed for vide judgment and decree dated 03.03.2018. Challenging the same, these appellants apart from one Mahalinga Nadar and Sons had filed these appeals. The other defendants who suffered the decree did not file appeals.

4. The learned counsels for the appellants raised a host of contentions. They pointed out that the suit itself is not maintainable. They also would point out that proper court-fee was not paid and that Section 28 of the Tamil Nadu Court-Fees and Suits Valuation Act, 1955 is not applicable to the case on hand. The learned counsel were at pains to point out that the original trust deed did not surface at all and therefore, adverse inference ought to be drawn against the plaintiff. The suit had been decreed as prayed for on the ground that a clause set out in the scheme decree that permission must be obtained from the Court before effecting alienation was not complied with. The appellants contended that the said scheme decree would not bind the subsequent trustees. The appellants in A.S.(MD)No.20 of 2020 argued in the alternative that they were originally tenants and if the alienation made in their favour is void, their original status as tenants would get restored and hence, the plaintiff has to issue notice under Section 106 of the Transfer of Property Act and file a fresh suit for ejectment.

5. Per contra, the learned counsel for the plaintiff contended that the impugned judgment of the trial Court is well reasoned and that interference is not warranted. He relied on the decision reported in AIR 1962 SC 633 (L.Janakirama Iyer Vs. Nilakanta Iyer) in support of his contention. He pressed for dismissal of the appeals.

6. We carefully considered the rival contentions and went through the evidence on record. The points that arise for determination are as follows:-

               “(a) Whether adverse inference can be drawn against the plaintiff for non-production of the trust deed?

               (b) Whether Section 28 of the Tamil Nadu Court-Fees and Suits Valuation Act, 1955 is applicable?

               (c) Whether the scheme decree dated 30.07.1952 made in O.S.No.217 of 1950 is binding on the subsequent trustees?

               (d) Whether alienation made in breach of clause 13 of the scheme decree would render it as null and void?

               (e) When the alienation made in favour of the tenant who questioned the title of the landlord is set aside, whether his status as that of a tenant would stand restored?”

7. Samyakone Trust appears to have been founded way back in the year 1899. Obviously, there must have been some kind of a document for founding the trust. But then, this original trust deed did not surface at all. Only if it is shown that the plaintiff was in possession of the document and that he withheld production of the same, then alone, adverse inference can be drawn under Section 119 of the Bharatiya Sakshya Adhiniyam, 2023 and not otherwise. The plaintiff no where admitted that he is having the original trust deed with him. On the other hand, it is only in the sale deeds executed in favour of the appellants, there is a specific reference to antecedent documents. But they have not been produced. When the purchasers have not chosen to produce the documents, it is too much on their part to expect the plaintiff to produce the same. Hence, we cannot draw any adverse inference against the plaintiff.

8. Section 28 of the Tamil Nadu Court-Fees and Suits Valuation Act, 1955 reads as follows:-

               “28. Suits relating to Trust property.

               In a suit for possession or joint possession of Trust property or for a declaratory decree, whether with or without consequential relief in respect of it, between trustees or rival claimants to the office of trustee or between a trustee and a person who has ceased to be a trustee, fee shall be computed on one-fifth of the market value of the property subject to a maximum fee of [rupees one thousand] [Substituted for the words 'rupees two hundred' by the Tamil Nadu Court-fees and Suits Valuation (Amendment) Act, 2003 (Tamil Nadu Act 17 of 2003) with effect from 15th June 2003.] or where the property has no market value, on [rupees five thousand][Substituted for the words 'rupees one thousand' by the Tamil Nadu Court-fees and Suits Valuation (Amendment) Act, 2003 (Tamil Nadu Act 17 of 2003) with effect from 15th June 2003.]:

               Provided that, where the property does not have a market value, value for the purpose of determining the jurisdiction of Courts shall be such amount as the plaintiff shall state in the plaint.

               Explanation. - For the purpose of this section, property comprised in a Hindu, Muslim or other religious or charitable endowment shall be deemed to be Trust property and the manager' of any such properly shall be deemed to be the Trustee thereof.”

9. The expression “between” occurring in the aforesaid provision is significant. In other words, the suit should be one between trustees or rival claimants to the office of the trustee or between a trustee and a former trustee. The parties to the suit should come under one of the following categories: (a) trustee (b) claimant to the office of the trustee or (c) former trustee. The relief sought must be one for possession or joint possession of trust property or for a declarative decree with or without consequential relief in respect thereof. If apart from the categories of persons mentioned above, there are other persons figuring in the suit either as plaintiff or defendant, Section 28 of the Tamil Nadu Court-Fees and Suits Valuation Act, 1955 will not have any application.

10. It was held in the decision reported in (1967) 80 LW 31 (Sri La Sri Somasundara Gnana Desiga Swamigal, Madathipathi of Kovilur Mutt v. Krishnanandaswami) that Section 28 contemplates trust institutions in respect of which there may be several trustees and possession, more properly joint possession, is sought by one or more trustees against the other or others, or there may be disputes as to possession between rival persons claiming to be trustees of the self-same trust. The person impleaded as defendant may deny the plaintiffs title, but when the suit is framed as one for possession between trustees or between rival claimants to the office of trustee or between a trustee and a person who has ceased to be a trustee in respect of a trust institution, then the only matter really raised in issue by the plaintiff is the right of management of the property. A suit for recovery of trust property by the trustee from a stranger to the trust must be valued like any other suit for possession, by an owner against a stranger in possession.

11. Coming to the facts on hand, there is no dispute that the plaint has been filed through a trustee. The defendants 1 and 2 can be construed either as trustees or claimants to the office of the trustee. But the dispute is not just between the plaintiff on the one hand and the defendants 1 and 2 on the other. The plaintiff sought recovery of possession of suit immovable property from the alienees of defendants 1 and 2. The alienees are neither trustees nor claimants to the office of the trustee nor former trustees. Since the contest is between one of the trusteess and third parties, Section 28 of the Act will not apply and the plaintiff has to necessarily pay court-fee on ad valorem basis to be determined in accordance with law.

12. Some quarter century after the founding of trust, dispute appears to have arisen with regard to administration of Samyakone Trust. O.S.No.217 of 1950 was instituted on the file of Sub Court, Madurai. A compromise was entered into and a scheme decree was framed in terms thereof on 30.07.1952. Clause 13 of the scheme decree reads as follows:-

               “13.That none of the trustees shall be entitled to alienate the office of trusteeship to any person either by sale, Will, mortgage or otherwise. For proper and legal necessity for carrying out the object of the trust, all the trustees can encumber the estate jointly but such encumbrance shall be done only with the sanction of this Court by making an application on the side of execution of this decree.”

               The decision of the trial Court that the suit alienations made by the defendants 1 and 2 in favour of the appellants herein is null and void is in consonance with the ration laid down in the aforesaid decision.

13. The learned counsel for the appellants argued that scheme decree being an outcome of a compromise among the then trustees cannot bind the successors in office. We reject the said contention. Order XXIII Rule 3 of the Civil Procedure Code provides for compromise of suits. Any suit can be compromised so long as it is in accord with Order XXIII Rule 3 of CPC. The scheme suit is no exception. If it had been filed by a beneficiary in a representative capacity, then the added requirement set out in Rule 3-B will be attracted. Once a compromise decree is binding on the parties and their representatives, unless and until it is set aside in the manner known to law, a compromise decree has the same force as the decree that has been passed after contest [Vide 1916 4 LW 306 (Mad) (Thiruvambala Desikar Gnana Sambanda Pandarasannadi Avergal And Another v. China Pandaram Alias Manikkavasaka Desikar (died) And Another)]. If the trustees felt that clause 13 which forbade alienation without the scheme Court's sanction was working hardship, they ought to have applied to the scheme Court and got earlier scheme decree the either modified or resigned. They did not do so. Therefore, it is too late in the day to now argue that the scheme decree will not bind the successors in office.

14. The appellants in A.S.(MD)No.20 of 2020 were granted possession of concerned suit schedule item only in their capacity as lessors. Subsequently, they purchased the property and set up title in themselves and denied the title of the suit trust. Section 111(g) of the Transfer of Property Act states that a lease of immovable property determines by forfeiture that is to say, in case the lessee renounces his character as such by claiming title in himself. The learned counsel for the appellants would contend that post-declaration of the purchase by the appellants as null and void, their status as tenants will stand restored. If the landlord / trust wants to secure possession, the appellants herein must be given notice under Section 106 of the Transfer of Property Act. We cannot countenance such a contention. Section 106 of the Transfer of Property Act will apply only when the lease subsists and the landlord wants to eject the tenant. Section 106 requires that the land must issue termination notice and if the demand set out in the notice is not forfeited, he can file a suit for ejectment. But such a situation will not arise in the case on hand because the lease had already forfeited on account of the conduct of the appellants in A.S.(MD)No.20 of 2020. Once the lease has been forfeited by application of Section 111(g) of the Transfer of Property Act, the question of issuing notice under Section 106 of the Act will not arise at all.

15. All the points formulated for determination are answered accordingly.

16. It is needless to add that unless the court-fee as determined is paid by the plaintiff, the question of drafting the decree does not arise at all. No ground has been made out to interfere with the well considered decision of the trial Court and the appeals stand dismissed. No costs. Consequently, connected miscellaneous petitions are closed.