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Christian Mission Service v. The Kodaikanal Ladies Club - A.S. No.643 of 1991  RD-TN 411 (27 June 2002)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
The Honourable Mr. Justice P. SHANMUGAM
The Honourable Mr. Justice K. SAMPATH
A.S. No.643 of 1991
Christian Mission Service,
rep. by Mr. Horst Kowski,
Administrator and Power of
Attorney Agent. .. Appellant vs.
The Kodaikanal Ladies Club,
rep. by its Vice President
and Power of Attorney Agent
Mrs. Parvathi Srinivasan. .. Respondents
PRAYER : Appeal against the Judgment and Decree dated 27.11.1990
passed by the Subordinate Judge of Periyakulam in O.S. No.88 of 1983. For Appellants : Mr. V. Selvaraj for
M/s. Devadas, Sagar and Dharmakkan. For Respondents : Mrs. Chitra Sampath (for R-1) :J U D G M E N T
P. SHANMUGAM, J.
The first defendant is the appellant. Plaintiffs filed a suit for a direction to the defendants to deliver vacant possession of the house, ground and premises bearing Survey No.78/C3 in Kanoor Road, Kodaikanal and to pay a sum of Rs.27,000/- as damages and future damages at the rate of Rs.750/- per month. The suit was decreed and the appeal is against this judgment and decree.
2. The plaintiffs are - (i) The Kodaikanal Ladies Club and (ii) The Association of All India Women's Conference, New Delhi. According to them, the first plaintiff is a society registered under the Central Act namely the Societies Registration Act, 1860 as Society No.1 of 19 34-35 and the second plaintiff is the Association of All India Women's Conference, a registered society. They further state that after the passing of the Tamil Nadu Societies Registration Act 1975, the first plaintiff was registered under the said Act as Society No.67 of 198 2. The plaintiffs contend that the suit property was purchased by the first plaintiff by a registered sale deed dated 2.7.1937 and after putting up a building therein, they have been in possession and enjoyment of the same. The second plaintiff was instrumental in obtaining the medical van and donation from the Central Social Welfare Board to attend to one of their activities namely to provide free medical aid to the villagers. The first plaintiff constituted a committee from among its members to run the medical aid unit known as SKIPPO Roadside Hospital Committee (hereinafter referred to as the SKIPPO). The SKIPPO, through the committee members, have given possession of the suit property to the appellant herein, the first defendant in the suit, without the knowledge, concurrence or consent of the first plaintiff for running an orphanage by an agreement dated 12.5.1975 on an yearly payment of Rs.1/-. The appellant, by virtue of its possession of the suit property, has been running an orphanage in the premises. After coming to know of this, the plaintiffs have requested the appellant to deliver vacant possession to the first plaintiff, and on his failure to do so, the above suit came to be filed.
3. The first defendant, the appellant herein, questioned the locus standi of the plaintiffs to file the suit. According to them, they are strangers to the transaction as per which they have got possession of the property and that there is no cause of action against the appellant. The first plaintiff had not handed over possession of the property and it is not stated in the plaint as to how the first plaintiff has acquired any right in the property so as to demand possession. They denied the composition and constitution of the plaintiff. According to them, the SKIPPO came into possession of the suit property, developed the same by constructing two buildings in the suit property out of their own funds and the Kodaikanal Ladies Club was nowhere in the picture because it had ceased to exist long ago. In order to put the property for a worthy and noble cause, SKIPPO was on the look out for an established charitable and philanthropic organisation which could utilise the suit property and the building for a noble cause. They then contacted the appellant herein, which is an organisation engaged in the rehabilitation of orphan and destitute children by running children homes and orphanages. After they were given possession of the suit property along with the two buildings, they have made improvements therein and additional constructions have been made in the property after finding that there is nobody else to claim the property. They further contend that SKIPPO Mobile Medical Unit has no connection with the so called SKIPPO Roadside Hospital Committee and no committee of the Kodaikanal Ladies Club was running any free medical service. According to them, the SKIPPO Mobile Medical Unit was a distinct and separate entity vis-a-vis the Kodaikanal Ladies Club. The appellant also plead that they have perfected their title by adverse possession and prescription. According to them, there is no link between the society of 1934 and the society registered under the Madras Act. The SKIPPO Medical Unit has nothing to do with the so called SKIPPO Roadside Hospital Committee. According to them, SKIPPO Mobile Medical Unit was a separate legal entity, independently holding the property during the relevant time.
4. Defendants 2 to 4 have filed a separate written statement supporting the case of the plaintiffs. According to them, the SKIPPO handed over the suit property temporarily to the appellant as they needed it for their charitable and social purpose. It was only after their transfer that they became aware of the existence of some of the members of the first plaintiff who were anxious to re-start the ladies club. On 2.5.1981, the SKIPPO committee and four members of the ladies club agreed in a meeting to take over the suit property and that the SKIPPO had to be dissolved and that they shall deal with the suit property. According to them, the first plaintiff had taken possession of the suit property and has absolved all the former members of the SKIPPO of their liability and has undertaken full responsibility to recover possession of the suit property. The fourth defendant is only an attestor to the authorisation permitting the appellant herein to occupy the suit property. They have no objection to a decree being passed only against the first defendant, the appellant herein. The appellant had also filed additional written statement. On these pleadings, the learned Sub Judge has framed as many as 12 issues and after marking documents Exs.A.1 to A.33 and B.1 to B.9 and considering the deposition of P.Ws.1 to 4 and D.Ws.1 to 5, decreed the suit. The appeal is against this judgment and decree.
5. One of the main issues which is crucial for the disposal of this appeal is on the maintainability of the suit and the locus standi of the first plaintiff to file the suit. The learned Judge disposed of this issue as Issue No.4 in favour of the p tiff, even though he has held that the society registered under the Central Act has nothing to do with the suit property in paragraph 22 of his judgment.
6. We have heard Mr. V. Selvaraj, learned counsel for the appellant and Mrs. Chitra Sampath for the first respondent and considered the matter carefully.
7. At the outset, it has to be stated that on the pleadings, we find that the first plaintiff is Kodaikanal Ladies Club represented by its Vice President and in paragraph 1, it is stated that it is a club registered under the Society Registration Act, 1860 as No.1 of 1934-35 . It is further stated that the first plaintiff has purchased the suit property by a sale deed dated 2.7.1937. In paragraph 3, it is stated that after the passing of the Tamil Nadu Societies Registration Act 1975, the first plaintiff was registered under the said Act as Society No.67 of 1982. In other words, the case of the plaintiffs is that the Kodaikanal Ladies Club registered as No.1 of 1934-35 is the same as the Kodaikanal Ladies Club No.67 of 1982. As per Section 14 of the Tamil Nadu Societies Registration Act 1975, every registered society shall maintain a register containing the names, addresses and occupation of its members and shall be open to inspection by any member. Section 15 of the Act contemplates a committee to manage the affairs of the society. Section 26 requires the conduct of the Annual General Body Meeting. Section 44 provides for removal of a defunct society if the society is not carrying on the business or in operation and if there is to be amalgamation, it has to be done as per Section 30 of the Act with the prior approval of the Registrar. Section 4 provides for compulsory registration and Sub-section (2) speaks of a society which has already been registered under the Central Act.
8. In the light of these provisions, it is not legally possible for the Kodaikanal Ladies Club 1 of 1934-35 to claim that it is the same as that of Society No.67 of 1982. The case of the first respondent that after the coming into force of the State Act they have exercised the option under Section 5 of the Act to re-register the earlier society cannot be accepted as permissible under law. If a society is required to be compulsorily registered as per Section 4, it has to be registered compulsorily. Only in cases where a society is dealing with the promotion of religion, athletics, etc., it can be registered at the option. Therefore, the main submission of the appellant that the present society registered under the Tamil Nadu Act has no locus standi to represent and espouse the cause of the Kodaikanal Ladies Club, registered under the Central Act has much force. There is no amalgamation and there is no continuation of the society.
9. Insofar as the Kodaikanal Ladies Club No.1 of 1934-35 is concerned, the case of the appellant is that it has become defunct. From Ex.A.8 dated 6.7.1959, it is seen that the Registrar of Assurances, in his notice dated 6.7.1959, has pointed out to the Secretary of the Society that they have failed to file the list of members of the governing body for the years 1952, 1953, 1954, 1955, 1956, 1957 and 1958. The Society was called upon to file the particulars set out in the notice and they were told that if the Society omits to file the list for any year, it will be treated as having become defunct and that its records will be destroyed in due course. For this, a reply was sent dated 4.11.1959, Ex.A.9 by the SKIPPO Roadside Hospital stating that they are sending the list from 1951 to 1960 f or the Ladies Club and SKIPPO Roadside Hospital and they wanted recognition of the amalgamation of the Ladies Club with the All India Women's Conference of Kodaikanal Branch. Thereafter, the first respondent registered another society by name Kodaikanal Ladies Club with the address No.170, Kutchery Road, Mylapore, Chennai, the date of its formation being 1.1.1982. Thus, the fact remains that the society registered under the Central Act has become defunct and it has not been revived or restored as required under the Act and consequently it has ceased to exist. Whereas, a new society had been registered in the year 1982 and immediately thereafter the suit came to be filed. Therefore, it is clear that Society No.67 of 1982 is not the owner of the suit property and it is not the said society which has transferred the property to the appellant herein and the said society cannot be recognised as representing Society No.1 of 1934-35 and therefore, they have no locus standi to file a suit.
10. The plaintiffs themselves are not clear about their stand as to the suit property. At one stage, they say that Society No.1 of 1934-35 constituted a committee known as the SKIPPO Roadside Hospital Committee and that the same was affiliated to the second plaintiff and that they were running the mobile medical aid van. It was managed by some of the members of the first plaintiff Club and thereafter, they constituted the SKIPPO Mobile Medical Unit which transferred the property to the appellant herein. When the SKIPPO Mobile Medical Unit was in existence, the Kodaikanal Ladies Club 67 of 1982 was nowhere in the picture. The SKIPPO Roadside Hospital and SKIPPO are different entities. Defendants 2 to 4 have stated that SKIPPO, before it became dissolved, had handed over the suit property to the appellant herein as they needed it for a charitable and social purpose. The SKIPPO Mobile Unit was formed with the medical aid provided by a Canadian Agency which was distinct from the then Kodaikanal Ladies Club Society and it was this unit which set up the mobile medical unit with the donation provided by the Canadian Agency. The argument of the learned counsel for the first respondent is that some of the members of the society constituted themselves as a committee known as SKIPPO Roadside Hospital Committee and that those members, with the existing members, formed the present society and that therefore they are entitled to take legal possession of the suit property. The stand of the first respondent is far fetched and cannot be treated as a legally acceptable proposition of law. Society No.67 of 1982, which alone can be treated as the existing society, cannot maintain the suit for the property of the then Society 1 of 1934-35. Therefore, the suit, as such, is not maintainable in law.
11. Some of the documents can be now usefully referred to: (i) Ex.A.11 consists of booklet with the photographs showing the activities of SKIPPO and in the heading `Our Appeal', it is stated as follows :
"The Van and the Driver are housed in the Compound of the Ladies Club but all these years the doctor has had no proper quarters. With the consent of the members of the Ladies Club we now hope to re-model their building and have a permanent home for the key man in this enterprise.
Rs.1,000 has been raised in Sweden and we want an equal amount of Rs.1,000."
The composition of the 1995-56 Committee is set out, besides the details of its route map and its services.
From the above document, it is clear that the SKIPPO is an independent unit functioning independently from the Kodaikanal Ladies Club. It is this SKIPPO which was housed at the Ladies Club Premises and continued to function even after the Kodaikanal Ladies Club became defunct. (ii) Ex.A.25, a letter of the Christian Mission Service Pvt. Ltd., sets out clearly the background of the whole case. According to this letter, their primary aim was to serve the hungry children and they would not have come into the picture and started their Orphanage but for the solemn undertaking given by the SKIPPO who were in possession for more than 25 years that the property would be conveyed to them and that no one else would make any claim. They have started the Orphanage making large investments as per the conditions of the agreement. With the knowledge of the plaintiffs, they have spent considerable amount in the property. They have evicted one Veerayya paying him compensation. What was agreed in the agreement that the land and building should be conveyed to them within five years vide clause 7 of the agreement. The present claim of the plaintiffs is diametrically opposed to the solemn assurance given in the agreement. As far as they are concerned, the Kodaikanal Ladies Club and A.I.W.C. were nowhere in the picture. SKIPPO had perfected title by long possession. The Ladies Club had become extinct long ago and they had lost whatever rights they had. It is not now legally possible for some new persons to come and say that the Ladies Club is revived and the property must be given back to them. This is all not possible in law. Neither the Ladies Club now stated to be formed nor anyone else has any legal rights to ask them to give the property to them. The SKIPPO also has no such rights after having entered into the agreement. They have reiterated their rights in their communication. (iii) The case of the plaintiff as put forward in their reply to the above statement of the Christian Mission Service Pvt. Ltd., is that in or about 1949, the Kodaikkanal Ladies Club got affiliated to the All India Women's Conference. This Conference affiliated the Kodaikanal Ladies Club and was running a medical van for the benefit of the villagers, by forming a Sub-Committee to carry out the activities of the conference. This Sub-Committee was put in possession of the property to have their office. According to them, the SKIPPO is a wing of the Conference and they could not enter into an agreement. They further say that additions and alterations made in the property were done without the written authority and they further allege that the Kodaikanal Ladies Club got affiliated to All India Women's Conference and continues.
(iv) Ex.A.32 is a communication from the Registrar of Assurance to the Honourary Secretary, SKIPPO Roadside Hospital, Kodaikanal. By this communication dated 16.10.1959, the Registrar has stated as under : "The merger of the Kodaikanal Ladies Club with the All India Women' s Conference cannot be recognised as provision of Section 14 of the Societies Registration Act were not complied with.
I am however taking steps separately to treat the Kodaikanal Ladies Club as defunct."
(v) Ex.B.1 is the copy of the memorandum of the Kodaikanal Ladies Club registered as 67 of 1982 at Madras. The said memorandum has got its objects with very wide ranging objects and there is no mention of the then Kodaikanal Ladies Club 1 of 1934.
(vi) Ex. B.3 is the agreement dated 12.05.1975 between the SKIPPO Mobile Medical Unit, Kodaikannal, represented by its President and the Christian Mission Service.
(vii) Ex.B.8 is the report of the SKIPPO Mobile Medical Unit for the year 1973-1974. In the report, it is stated as as under : "SKIPPO" was the name of a pet mountain goat. SKIPPO Mobile Medical Unit in Kodaikanal was started on October 9, 1949. Its aim was to serve the sick in the surrounding villages."
The report shows that SKIPPO was closing down its work and expressed their appreciation in gratitude for the donations. It is specifically stated that since the Unitarian Service Committee of Canada has planned to stop all aid to India, they shall have to completely close down on June 30, 1975. It is in this background that by the agreement dated 12.05.1975, the SKIPPO Mobile Medical Unit decided to permit the Christian Mission to use and occupy the premises and buildings and handed over the same for their absolute possession and enjoyment for their activities.
13. From the above documents, it is clear that the respondents have come into possession of the property by virtue of the agreement and they are in possession and enjoyment of the same, whereas the plaintiffs are not in possession of the property at least from the year 1975.
14. Thus, both in law and on facts, the plaintiffs have not made out a case for a decree. The finding of the learned Judge that SKIPPO is a branch of the defunct society and therefore, the plaintiff society has got a right over the suit property is clearly illegal and unsustainable. The trial court has misconstrued the provisions of the Central Act and the Tamil Nadu Act and ought to have held that the present society has no connection with the suit property and that the society registered under the Central Act has become defunct and therefore, there cannot be any order to hand over possession of the suit property to either of the societies.
15. For all the above reasons, the appeal is allowed and the judgment and decree of the Court below is set aside. No costs. Consequently, the connected C.M.Ps. are closed.
Index : Yes (P.S.M.,J.) (K.S.,J.) Internet : Yes 27..06..2002 ab
1. The Subordinate Judge,
Periyakulam (With Records, if any).
2. The Record Keeper,
P. SHANMUGAM, J.
K. SAMPATH, J.
A.S. Nos.643 of 1991
and connected CMPs.
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