A charitable society's possession and damages suit against its tenant was held maintainable through its Secretary authorised by its rules. The court upheld civil-court jurisdiction under the rent-control exemption, confirmed the decree and dismissed the tenant's second appeal with costs.
Costs awarded against the appellant.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 31.03.2021
PRONOUNCED ON : 22.04.2021
CORAM
THE HONOURABLE MR. JUSTICE T.RAVINDRAN
S.A.No. 959 of 2008
M/s. Nilgiri Petroleum Company
A partnership firm represented by
its Managing Partner
Madan
Charring Cross Villa
Charing Cross,
Ootacamund. ...Appellant
Vs.
The Nilgiri Diocesan Society
A Registered Christian Public
Charitable Society, represented
by its Secretary, R.V. Father
A.Anthonysamy
Bishop House, Ootacamund
Prayer: Second Appeal is filed under Section 100 of CPC, 1908
against the judgment and decree dated 08.03.2005 and made in
A.S.No.6 of 2004 on the file of the District Judge of Nilgiris
at Udhagamandalam confirming the judgment and decree dated
30.09.2003 and made in O.S.No.115 of 1998 on the file of the
Subordinate judge of Udhagamandalam.
JUDGMENT
Challenge in this second appeal is made to the judgment
and decree dated 08.03.2005 passed in A.S.No.6 of 2004 on the
file of the District Judge of Nilgiris at Udhagamandalam,
confirming the judgment and decree dated 30.09.2003 passed in
O.S.No.115 of 1998 on the file of the Subordinate Court,
Udhagamandalam.
2.For the sake of convenience, the parties are referred
to as per their rankings in the trial court.
3. The defendant in O.S.No.115 of 1998 is the appellant
in the second appeal.
4. The second appeal has been admitted on the following
substantial question of law.
"Whether the plaintiff-society is a juristic person and entitled
to maintain the suit against the defendant in its name?"
5. Considering the scope of the issues involved between
the parties qua the substantial question of law formulated in
the second appeal, it is unnecessary to dwell into the facts of
the case in detail.
6. Suffice to state that the plaintiff-society has laid
the suit against the defendant for the possession, past and
future damages. The plaintiff is the Nilgiri Diocesan Society,
a registered Christian Public Charitable Society, represented by
its Secretary Rev. Fr.A.Anthonyswamy. Claiming that the
defendant is the tenant under the plaintiff qua the suit
property and seeking possession of the suit property from the
defendant for the reasons assigned in the plaint as well as the
damages, the plaintiff has laid the suit against the defendant.
It has been averred in the plaint by the plaintiff that the
plaintiff-society is exempted from the provision of the
Tamilnadu Buildings (Lease and Rent Control) Act, 1960 as per
G.O.MS.No.2000 Home dated 16.08.1976 and accordingly put forth
that the Civil Court has the jurisdiction to grant the reliefs
sought for by the plaintiff.
7. The defendant resisted the plaintiff's suit interalia
contending that the parties are governed by the provisions of
the Tamilnadu Buildings (Lease and Rent Control) Act, 1960 and
therefore, the plaintiff can seek eviction of the tenant only
before the Rent Controller, Oootacamund, and accordingly raised
the question of jurisdiction of the Civil Court to entertain the
plaintiff's suit.
8. In support of the plaintiffs' case P.W.1 was examined
and Exs. A1 to A13 were marked. On the side of the defendant
D.W.1 was examined and no document has been marked.
9. On a consideration of the oral and documentary
evidence adduced by the respective parties and the submissions
put forth by them, the courts below were pleased to grant the
reliefs in favour of the plaintiff. Impugning the same, the
present second appeal has been laid by the defendant.
10. On an appreciation of the reasons and conclusions of
the courts below, it is found that the plaintiff is falling
under exemption vide G.O.MS.No.2000 Home dated 16.08.1976 and
accordingly, rightly held that the civil court has jurisdiction
to entertain the suit laid by the plaintiff and accordingly
granted the reliefs in favour of the plaintiff. As far as the
reliefs granted in favour of the plaintiff by the courts below,
it is found that the same had been determined by the courts
below on the appreciation of the materials placed on record as
well as the principles of law in respect of the issues involved
between the parties and accordingly, in my considered opinion,,
no reason is warranted to interfere with the abovesaid
determination of the courts below.
11. At the time of admission of the second appeal, the
counsel for the defendant contended that the very suit laid by
the plaintiff is not maintainable in law as according to him,
the plaintiff is not a juristic person and therefore, not
entitled to maintain the suit for the relief claimed by it.
12. Inasmuch as the abovesaid question raised by the
defendant is a pure question of law, accordingly, the second
appeal has been admitted on that question of law.
13. It is mainly argued by the defendant's counsel that
the plaintiff-society, not being the juristic person, is dis-
entitled to maintain the suit and therefore, on that ground
alone, the plaintiff has to be non suited. For the abovesaid
proposition of law, the counsel for the defendant mainly relied
upon the decision of the Apex Court reported in (2003) 8 Supreme
Court Cases 413 (Illachi Devi (dead) by Lrs and others vs. Jain
Society, Protection of Orphans India and others) and the
decision of the Division Bench of our High Court reported in
2010 (4) CTC 129 (Tamil Nadu Technical Education Department
Staff Cooperative House Building Society rep. by its Secretary
vs. The Secretary to Government , Housing and Urban Development
Department, Govt. of Tamil Nadu, Chennai 9 and others), as well
as the decision of the Apex Court reported in (2005) 10 Supreme
Court Cases 760 (Church of North India) vs. Lavajibhai
Ratanjibhai and others). The defendant's counsel also relied
upon the decisions reported in 2012 2 Mah LJ 177 (Gorakh Hilal
Patil and another vs. Parit Samaj Seva Mandal, Shirpur and
another) and 2003 3 SCC 472 (Chief Conservator of Rorests, Govt.
of A.P. vs. Collector and others).
14. In the decision reported in (2003) 8 Supreme Court
Cases 413, it has been held that the Society registered under
the Societies Registration Act, 1860 cannot enjoy the status of
the Company and thus it is not a juristic person. The abovesaid
principles of law enunciated by the Apex Court has been followed
in the subsequent decision reported in (2005) 10 Supreme Court
Cases 760 and the Division Bench of our High Court reported in
2010 (4) CTC 129.
15. Per contra, according to the plaintiff's counsel, the
plaintiff- Society, being a registered Society, is entitled to
maintain the suit through his Secretary in accordance with the
Rules and Regulations of the Society and therefore, contended
that the courts below having granted the necessary reliefs in
favour of the plaintiff by holding that the plaintiff's suit is
legally sustainable, according to him, no interference is
warranted in the determination of the courts below and thereby
sought for the dismissal of the second appeal.
16. As above pointed out, the plaintiff is described as
the Nilgiri Diocesan Society, a registered Christian Public
Charitable Society, represented by its Secretary Rev. Fr. A.
Anthonyswamy. In support of its case, the plaintiff has filed
Ex.A5, which is the Memorandum and Rules and Regulations of the
plaintiff-Society. On a perusal of Ex.A5, it is found that, as
per Rule 13, the plaintiff Society shall be entitled to sue in
the name of its Secretary and to defend the proceedings against
the Society by its Secretary. Therefore, it is noted that the
plaintiff-society shall be entitled to maintain the suit through
its Secretary in accordance with Rule 13 of the Memorandum and
Rules and Regulations of the plaintiff-Society marked as Ex.A5.
Ex.A5 is neither disputed nor challenged by the defendant as
such.
17. The question as to whether the society is entitled to
maintain the suit through proper persons came up for
consideration before this Court before Hon'ble Justice V.
Ramasubramanian (as He then was) in Application Nos. 2450 of
2007 and 2894 of 2006. In that matter, Application No.2450 of
2007 has been preferred under Order 7 Rule 11 CPC to reject the
plaint in C.S.No.590 of 2006 filed by the plaintiff-Society and
in that matter, the plaintiff-Society has been described as the
Uttar Pradesh Cricket Association represented by its Honorary
Treasurer Shri. Imran Ullah. The applicant in the abovesaid
applications contended that the plaintiff-society, not being a
juristic person, inasmuch as the society is not a legal entity
dis-entitled to sue or be sued except by virtue of and in
accordance with the provisions of the Act under which it is
registered and accordingly questioned the maintainability of the
plaintiff's suit. Per contra, it had been contended by the
plaintiff's counsel therein that though the plaintiff society
may not be a legal entity, the suit is nevertheless maintainable
in view of the resolution passed by the General Body at the
extraordinary General Meeting held on 02.07.2006, by virtue of
the provisions of Order 1 Rule 10 CPC.
18. The applicant in the abovesaid matter mainly relied
upon the decision of the Apex Court reported in (2003) 8 Supreme
Court Cases 413, which is also now mainly relied upon by the
defendant's counsel in the present second appeal. The abovesaid
decision of the Apex Court was considered by His Lordship in the
abovesaid Applications and held that, as in the abovesaid
decision of the Apex Court, it had been held that the Society in
a litigation must be represented through a person authorised in
that behalf either in terms of its Bye-laws or otherwise and
accordingly after considering the Bye-laws of the Society in
question as well as the provisions contained in the Sports Act
which empowered the Society/Association to frame its
constitution consisting of Memorandum and Bye-laws and held that
the plaintiff cannot be held to be dis-entitled to institute a
suit through the person contemplated under the Bye-laws and
further held that as in the Bye-laws of the plaintiff society in
the abovesaid matter did not permit the plaintiff to lay the
suit through the treasurer, on that reasoning alone, held that
the suit has not been instituted through the proper person
authorised under the Bye-law. The position of law has been
discussed in the abovesaid matter as follows:
8. Elaborating on his first submission that the plaintiff
is not a juristic person, entitled to maintain a suit, Mr. K.
Parasaran, learned Senior Counsel for the applicant/second
defendant invited my attention to the various provisions of the
Sports Act as well as to the provisions contained in the several
State Enactments relating to the Registration of Societies. In
all State Enactments relating to Registration of Societies, a
suitable provision is incorporated enabling Registered Societies
to sue or be sued in the name of any one of the Office Bearers
or Trustees of the Society. Such a provision under the heading
"suits by and against Societies" is found in Section 7 of the
A.P. (Telungana Area) Public Societies Registration Act, Section
6-A of the Jammu and Kashmit Societies Registration Act, 1998,
Section 15 of the Karnataka Societies Registration Act, 1960,
Section 22 of the Madhya Pradesh Society Registrikaran
Adhiniyam, 1973, Section 19 of the Meghalaya Societies
Registration Act, 1983, Section 6 of the Rajasthan Societies
Registration Act, Section 20 of the Tamil Nadu Societies
Registration Act, 1975 and Section 9 of the Travancore-Cochin
Literary, Scientific and Charitable Societies Registration Act,
1955.
9. Though a Society registered under the Central Act or
any of the State Acts, is not a juristic person, it is permitted
to sue and be sued in the name of any one or more of the Office
Bearers or Trustees, by the Statute itself. Alternatively, the
Statute enables the Society to frame Bye-laws naming and
authorising one of the Office Bearers or Trustees to sue and be
sued on behalf of the Society. But the Uttar Pradesh
(Registration, Recognition and Regulation of Associations)Act,
2005, does not contain a similar provision. In other words, the
Sports Act does not contain a provision enabling a Sports
Association registered under the Sports Act, to sue or be used
in the name of any one or more of its Office Bearers. The Act
does not even contain a provision enabling the Association to
frame Bye-laws for the said purpose. Section 7 of the Sports
Act mandates every Sports Association o frame its Constitution
consisting of Part-A and Part-B, containing the Memorandum of
Association and the Bye-laws respectively. Section 8(1) and (2)
lists out the matters relating to which a Sports Association
shall make provisions in its Bye-laws. But the manner in which
a Sports Association can sue or be sued is not listed as one of
the matters for which a provision is required to be made in the
Bye-laws of a Sports Association, registered under the Sports
Act.
10. The absence of such a provision in the Sports Act for
enabling such an Association to sue or be sued, assumes
significance in view of the judgment of the Supreme Court in
Illachi Devi (dead) by Lrs and others vs. Jain Society,
Protection of Orphans India and others ((2003) 8 SCC 413). The
Supreme Court held in the said case that "a Society registered
under the Societies Registratiion Act, is not a Body Corporate
as is the case in respect of a Company registered under the
Companies Act. Therefore, such a Society is not a juristic
Person". After extracting the provisions contained in various
State Enactments relating to suits by and against Societies, the
Supreme Court held in para-31 of its judgment as follows:
"31. A bare perusal thereof would show that a society registered
under theSocieties Registration Actas contra-distinguished
from a company registered under the Companies Actcannot sue in
its own name. It is to be sued in the name of the president,
chairman, or principal secretary or trustees as shall be
determined by the rules and regulations of the society or in the
name of such person as shall be appointed by the Governing Body
for the occasion in default of such determination. It is,
therefore, not correct to contend that it is capable of suing or
being sued in its own name."
11. Therefore, the quintessence of the first submission
of the learned Senior Counsel for the applicant/second defendant
is that the plaintiff registered under the Sports Act, is not
authorised by law to institute a suit and that therefore, the
plaintiff cannot be said to have had a cause of action against
the defendants. If the plaintiff, not being a juristic person,
did not have a cause of action against the defendants, it cannot
claim that a part of the cause of action arose within the
jurisdiction of this Court, so as to maintain the present suit.
12. But, I am unable to countenance the aforesaid
submission of the learned Senior Counsel for the
applicant/second defendant. Sections 7 and 8 of the Sports Act,
2005 mandates every Sports Association to frame its constitution
consisting of (a) its Memorandum containing aims, objectives and
area of operation under Part-A and (b) the Bye-laws under Part-
B. Section 8(1) and (2) merely lists out the matters relating
to which provisions should be made in the Bye-laws of a Sports
Association. Section 8(1) and (2) make it clear that the list
is not exhaustive. Section 8(1) reads as follows:
"Subject to the provisions of this Act, every Sports Association
which seeks Registration under this Act, shall make, amongst
other things, the following provisions in its Bye-laws".
Section 8(2) reads as follows:
"Every Sports Association shall incorporate a procedure for
Election in its Bye-law which shall among other provisions
comprise the following".
13. Thus the Sub Sections (1) and (2) of Section 8 use
the expressings "amongst other things" and "among other
provisions". Therefore, it is clear that the legislature left it
to the Associations to make suitable provisions in their Bye-
laws, even with regard to matters not listed under these Sub
Sections (1) and (2) of Section 8. Consequently, what was left
out by the Act, cannot be construed as "a vacuum", but only "an
elbow space" for the Associations themselves to fill up. As a
matter of fact, the plaintiff, in exercise of the power
conferred under Section 7 of the Sports Act, has framed its
Constitution, consisting of a Memorandum and Bye-laws. This
Memorandum and Bye-laws have been filed by the plaintiff as a
Document No.7. Bye-law No.34 deals with suits by and against
the Association and it reads as follows:
"34. Suit by or against the Association
The ASSOCIATION shall sue or be sued in the name of the
ASSOCIATION. However in case of any dispute between a member
and the ASSOSCIATION regarding the Election, the decision and
any instruction to be given to the counsels appearing on behalf
of the ASSOCIATION shall be taken only with the consent of the
General Body. The decision of the General Body would be final
and binding. However, in case the General Body is not available
then the President may take the decision on behalf of the
ASSOCIATION and his decision would have the same effect as that
of the General Body"
14. Therefore, I am of the considered view that the
plaintiff was entitled to institute the suit, in accordance with
Bye-law No.34 of its Bye-laws, de hors the absence of a specific
provision in the Sports Act dealing with suits by or against the
Associations registered under the Sports Act.
15. But unfortunately for the plaintiff, my above
conclusion does not go to the rescue of the plaintiff, for a
different reason. Though this reason was not projected by the
applicant/second defendant, I cannot ignore it, as a Court of
Original Jurisdiction. It is seen from the plaint that the
present suit has been instituted by the Honorary Treasurer of
the plaintiff-Association and not by the Honorary Secretary of
the plaintiff-Association. Though Bye-law No.34 enables the
Association to sue through the Honorary Secretary, it is not
known as to why and how the suit was instituted through the
Honorary Treasurer. As a matter of fact, a Resolution passed at
the Extraordinary General Meeting of the plaintiff-Association
on 02.07.2006 at Lucknow, filed as Document No.1 along with the
plaint, discloses that the Honorary Treasurer was authorised to
sign all papers and pleadings in connection with any legal
proceedings. But this Resolution filed as Document No.1 runs
contrary to the provisions contained in Bye-law No.34. Bye-law
No.34 as extracted above, gives no scope for any tinkering.
Primarily, Bye-law No.34 mandates the Association to sue or be
sued in the name of the Association through the Honorary
Secretary only. The only exception carved out by Bye-law No.34,
is with regard to a dispute between a Member and the
Association. In the case of a dispute between a Member and the
Association regarding the Election, the Association is directed
to go to the General Body for a decision. This exception under
Bye-law No.34 is not applicable to the present suit, since the
present suit is not one between a member and the Association.
The plaintiff has not made a whisper in the entire plaint as to
how and why the suit was instituted through the Honorary
Treasurer and not through the Honorary Secretary. Therefore, in
my considered view, the suit has not been properly instituted.
16. In Illachi Devi (dead) by Lrs and others vs. Jain
Society, Protection of Orphans India and others ((2003) 8 SCC
413), while holding that a Society is not a Juristic person, the
Supreme Court made it clear that in a litigation, a Society must
be represented only through a person authorised in terms of its
Bye-laws. Paragraph 51 of the said judgment, extracted below,
makes it very explicit:-
51. Grant of probate in favour of society registered under the
Societies Registration Actis refused, as discussed
hereinbefore, inter alia on the ground it is not a juristic
person. It, in a litigation, must be represented through a
person authorised in this behalf either in terms of its bye-laws
or otherwise."
17. The words "or otherwise" used by the Supreme Court in
paragraph 51 of its judgment extracted above, cannot also be
used to mean that a person authorised by a Resolution of the
Extraordinary General Meeting (or Annual General Meeting) will
be entitled to sue. Any authorisation by a Resolution of the
Annual General Meeting or Extraordinary General Meeting can be
used only in the absence of a specific provision in the Bye-laws
or if the Bye-laws themselves provide for the Annual General
Meeting or Extraordinary General Meeting to grant such
authorisation. The Annual General Meeting or Extraordinary
General Meeting cannot pass a Resolution contrary to the Bye-
laws. This position is also made clear by the Supreme Court in
the very same judgment in paragraph-31, which has been extracted
in paragraph-10 above. In the said paragraph-31, the Supreme
Court made it clear that a Society "is to be sued in the name of
the President, Chairman or Principal Secretary or Trustees as
shall be determined by the Rules and Regulations of the Society
or in the name of such person as shall be appointed by the
Governing Body for the occasion in default of such
determination". Therefore, in the first instance, a Society can
sue only in the name of a person as appointed by the Bye-laws.
In the absence of any such appointment under the Bye-laws, it
can sue in the name of a person appointed by the Governing Body.
In the present case, the Bye-law No.34 specifically authorises
the plaintiff-Society to sue through the Honorary Secretary.
Hence, it cannot institute a suit through the Honorary Treasurer
on the basis of a Resolution of the Extraordinary General Body.
18. Coming to the second contention of Mr.K.Parasaran,
learned Senior Counsel for the applicant/second defendant that
if the plaintiff is not a juristic person, it cannot have a
cause of action and that consequently the plaintiff is not
entitled to claim a part of the cause of action to have arisen
at Chennai, it is seen that this contention is actually an off-
shoot of the first contention. As I have observed in the
previous paragraphs, though the Uttar Pradesh Cricket
Association is not a legal entity, the Sports Act has enabled
the said Association to frame its Constitution consisting of a
Memorandum and Bye-laws. The plaintiff has been registered
under the Sports Act of the State of Uttar Pradesh and it has
framed for itself a set of Bye-laws. Bye-law No.34 contains an
authorisation for the Association to institute a suit in the
name of the Honorary Secretary. Therefore, it cannot be said
that the plaintiff is no entitled to institute a suit in the
name of the Honorary Secretary. Therefore, it cannot be said
that the plaintiff is not entitled to institute a suit and that
it cannot complain of a cause of action. But unfortunately for
the plaintiff, the suit has not been instituted through the
Honorary SEcretary as per Bye-law No.34. Hence, though I am
unable to appreciate the logic behind the contention of the
learned Senior Counsel for the applicant/second defendant, I
have no alternative except to accept his conclusion, on the
basis of a different reasoning viz., that the suit has not been
instituted through the person authorised under Bye-law No.34.
In the light of the abovesaid position of law enunciated in the
matter, it is found that the plaintiff-Society is entitled to
maintain the suit through proper person as per the Rules and
Regulations of the Society and in such view of the matter, the
contention now put forth by the defendant's counsel that the
plaintiff society is not entitled to maintain the suit, as such,
cannot be countenanced.
19. In the decision reported in 2003 8 SCC 413, it is
noted that the respondent society therein had been formed for
the protection of orphans in India and was registered under the
Societies Registration Act, 1860 and one R executed a Will on
15.10.1977 bequeathing a part of his estate to an orphanage run
by the respondent society and on the demise of R, the respondent
society submitted an application before the Court for the grant
of Letter of Administration in pursuance of the abovesaid Will
under Section 276 of the Succession Act, 1925 and the said
application was contested by the appellant therein and on her
death by her legal representatives on the ground that in view of
Section 236 of the Act, the application was not maintainable.
The Delhi High Court rejected the said objection and held that
although a society was not a corporation it was also not a mere
association of individuals and thereby held that since the
Society could sue and be sued in a representative capacity, it
could be entrusted with the responsibility of carrying out the
wishes of the testator and also further held that the taking of
a view to the contrary might frustrate the purpose of a Will in
favour of the Society. Challenging the abovesaid decision of
the Delhi High Court, an appeal has been preferred by the
appellant and in the abovesaid appeal, the Apex Court has held
that the Society Registered under the Societies Registration
Act cannot enjoy the status of the company and it is not a
juristic person. In para 31 of the judgment of the abovesaid
Apex Court, it has been held that the litigation of a Society
must be represented only through a person authorised in terms of
its Bye-laws as follows.
31. A bare perusal thereof would show that a society registered
under the Societies Registration Actas contra-distinguished
from a company registered under the Company Actcannot sue in
its own name. It is to be sued in the name of the president,
chairman, or principal secretary or trustees as shall be
determined by the rules and regulations of the society or in the
name of such person as shall be appointed by the Governing Body
for the occasion in default of such determination. It is,
therefore, not correct to contend that it is capable of suing or
being sued in its own name.
50. We may state that, as noticed hereinbefore, in terms
of rules framed by the States under the Societies Registration
Act, a society may sue or may be sued through its President or
Secretary or in the absence of any specific provisions in that
behalf, any person authorised by the Society.
51. Grant of probate in favour of society registered
under the Societies Registration Actis refused, as discussed
hereinbefore, inter alia on the ground it is not a juristic
person. It, in a litigation, must be represented through a
person authorised in this behalf either in terms of its bye-laws
or otherwise."
After holding so, the Apex Court in the abovesaid decision held
that the Society registered under the Societies Registration Act
play an important role in the Society and they discharge various
functions which are beneficial to the society and they run
education and other institutions and work in public interest and
act in aid of the state functions and have their own
accountability and some incur liabilities and Public Interest
litigations filed by societies are galore and resultantly
remitted the matter back to the High Court with a liberty to the
respondent society to amend the petition for the grant of Letter
of Administration and further directed that it would be open to
the respondent society to nominate any of its office bearers to
whom the Letter of Administration is to be granted.
20. It is thus found that the society is found to be
entitled to maintain the litigation through a proper person as
envisaged under its Rules and Regulations.
21. In the decision of the Division Bench of our High
Court reported in 2010 4 CTC 129 , it is found that an
unregistered Society has filed the Writ Petition involved in the
abovesaid matter challenging the acquisition proceedings
initiated by the State Government. The Society in that matter
was found to be represented by its Secretary. However, as in
that matter the society had not filed proper records to evidence
that as to how the Secretary was authorised to file the Writ
Petition on behalf of the society, on that reasoning, following
the decision of the Apex Court reported in 2003 8 SCC 413, held
that the Writ Petition preferred by the Society is not legally
sustainable.
22. Insofar as the present case is concerned, as above
noted, when the plaintiff-Society has marked its Memorandum and
Rules and Regulations as Ex.A5 and when the same is not
challenged in any manner and when in accordance with Rule 13 it
is found that the plaintiff society is entitled to sue in the
name of its secretary and to defend the proceedings proceeded
against the society by its Secretary, in such view of the
matter, even as per the decisions relied upon by the defendant's
counsel as above referred to, when it is seen that the
plaintiff-Society had been represented by the proper person in
accordance with its Memorandum and Rules and Regulations marked
as Ex.A5 and accordingly when as above pointed out, the
plaintiff-Society has laid the suit through proper person i.e.
its Secretary, in such view of the matter, as rightly contended
by the plaintiff's counsel, the framing of the plaintiff's suit
cannot be held to be bad in law or not legally sustainable.
23. The plaintiff's counsel in support of his contentions
placed reliance upon the following decisions reported in 1) CDJ 2003 SC 891 (Illachi Devi (D) by LRs & others vs. Jain Society, Protection of Orphans India & Others.
2) CDJ 2012 SC 631 (State of Rajasthan & others vs. Aanjaney Organic Herbal Pvt. Ltd.)3) CDJ 1987 SC 747 (Bal Niketan Nursery School vs. Kesari Prasad)4) CDJ 1964 SC 291 (Commissioner of Income Tax, Kerala & Coimbatore vs. L.W.Russel)5) CDJ 2000 SC 202 (Shiromoni Gurudwara Prabandhak Committee vs. Som Nath Dass)6) CDJ 1956 SC 098 (Dulichand Lakshminarayan vs. Commissioner of Income Tax, Nagpur)7) CDJ 2016 SC 084 (Bharat Aluminium Company vs. Kaiser Aluminium Technical Services Inc.)8) CDJ 1961 SC 065 (Board of Trustees, Ayurvedic & Unani Tibia College Vs. State of Delhi & Another)9) CDJ 2021 MHC 703 (Arulmigu Thirunageshwaraswamy Devasthanam, Kundrathur, Rep. by Fit person/Executive Officer vs. Anna Kaithari Nesavu Thozhilalar Sangam, by its President & Secretary, Kundrathur & another)10)CDJ 1950 ALL HC 044 (Ganga Sahai vs. Bharat Bhan)11)CDJ 1949 ALL HC 160 (Benares Hindu University vs. Gauri Dutt Joshi)12)CDJ 2001 DHC 1221 (Jain Society for the Protection of Orphans for India vs. State of Delhi)13)CDJ 1969 BIHAR HC 030 (K.C. Thomas vs. R.L.Gadeock)14)CDJ 2001 MHC 1264 (Vijayakumar vs. Roman Catholic Church, represented by Rev. Father J. Anthony Joseph)15)(2001) 1 LW 652 (Mulla Gulam Ali and Safiabai D. Trust vs. Deelip Kumar and Co.)16)(1996) 1 LW 533 (Ranjan Devasahayam vs. Hindustan Bible Institute of India)17)CDJ 1995 MHC 760 (Ranjan Devasahayam vs. Hindustan Bible Institute of India)18)(1909) ILR (Madras) 469 (Shaik Atham Sahib vs. Daoud Sahib).19)S.A.(MD) No.27 of 2017 (V. Irudhayaraja vs. The procurator of Society of St. Mary's East Veli Street, Madurai)20)S.A(MD) Nos, 56 to 60, 73 & 74 of 2020 (J. Asolin vs. The Society of Francis Xavier, Palayamkottai)21)S.A.No.1306 of 2008 (M/s. Sundaram Co-opoerative Credit
Societies Limited, rep. by its Secretary, Chennai 2 vs.
M/s. Associated clearing and forwarding agencies and others)
22)RSA No.776 of 2007 (Sebi Joseph vs. The Ernakulam District
Postal Telecom)
23)Writ Petitions (PIL) No. 140 of 2015 (High Court of
Uttarakandh (Lalit Miglani vs. State of Uttarkhand & others)
24)(1941) AIR (Bombay) 312 (A.S.Krishnan vs. M. Sundaram)
25)(1946) AIR (Bombay) 516 (Satyavart Sidhantalankar vs. The
Arya Samaj)
26)Suit No.2231 of 1986 (High Court Judicature at Bombay)
(Rathunath Namdeo Nikam & Ors vs. Smt. Padmavati Mohanlal
Parekh)
27)(1940) AIR (Madras) 949 (Boppana Rukminamma and another vs.
Maganti Venkata Ramadas)
The principles of law outlined in the abovesaid decisions are
taken into consideration and followed as applicable to the case
at hand.
24. The Apex Court in the decision reported in 2010 9 SCC
354 (New Okhla Industrial Development Authority (Noida) vs. Army
Welfare Housing Organisation and others) has held that the
Society Registered under the Societies Registration Act, 1860,
is capable of holding the property and for the same relied upon
the decision of the Constitution Bench reported in AIR 1962 SC
458 (Ayurvedic and Unani Tibia College v. State of Delhi),
wherein it has been held that the Society involved in that
matter though registered under Societies Registration Act, has
certain characteristics which would enable it to hold the
property and therefore transfer of the land cum superstructure
would be by way of a sub lease from the lessor i.e. Noida to the
lessee which is AWHO to the sub lessees who are the individual
allottees, by way of a stamped and registered document. In the
abovesaid decision i.e. 2010 9 SCC 354 the Apex Court has also
distinguished the decision of the Apex Court reported in (2003)
8 SCC 413 and followed the Constitution Bench of the Apex Court
reported in AIR 1962 SC 458 and held that the Constitution
Bench while dealing with Sections 5 and 6 of the Societies
Registration Act and the question as to whether the Tibia
College Board set up under the Tibia College Act, 1952 was a
corporation in law and consequently held that the Board was
indeed, not a corporation but had the characteristics of a quasi
corporation and though a registered society could not hold
property but a quasi corporation would be deemed to be a
separate legal entity and entitled to hold property. The
position of law has been discussed in the abovesaid decision as
follows:
39. Mr. Anand, has however, submitted that a society
registered under the Societies Registration Act was not a body
corporate or a juristic person and the Society i.e AWHO and its
members were one entity and there was, accordingly, no question
of transferring by way of sub-lease any property from AWHO to
the sub-lessees. This argument to our mind is without force in
the light of what has been held above and that in the case of
Brigadier Gur Dyal the stand taken was that the sub-lessees
should execute a document directly with NOIDA bypassing AWHO, as
that was deemed to be the right procedure. Mr. Anand's reliance
on Illachi Devi case is misplaced for the simple reason as no
ownership has been transferred to the cooperative society i.e.
AWHO by NOIDA
40. In this background it must be held that the word
"vest" in Section 5 of the Societies Registration Act does not
envisage a lease deed and the matter would, if at all, be
covered by Section 5-A, an amendment pertaining to the State of
Uttar Pradesh alone which provides:
"5-A Restriction on transfer of property - (1)
Notwithstanding anything contained in any law, contract or other
instrument to the contrary, it shall not be lawful for the
governing body of a society registered under this Act or any of
its members to transfer, without the previous approval of the
court, any immovable property belonging to any such society.
(2) Every transfer made in contravention of sub-section
(1) shall void".
We are, however, not inclied to examine the implication of
Section 5-A for the simple reason that many of those who are
likely to be affected by its interpretationare not parties to
the writ petition.
41. Mr. Gupta has further submitted that a society was a
legal entity in law distinct from its members as the property
vested in living members, trust or board and as such the society
could hold property, although it may not be a juristic person.
For this argument, Mr. Gupta has placed reliance on Ayurvedic
and Unani Tibia College vs. State of Delhi.
42. In Ayurvedic and Unani Tibia College Case, the
Constitution Bench was dealing with Sections 5 and 6 of the
Societies Registration Act and the question as to whether the
Tibia College Board set up under the Tibia College Act, 1952
was a corporation in law. The Bench held that the Board was,
indeed, not a corporation but had the characteristics of a quasi
corporation and though a registered society could not hold
property but a quasi corporation would be deemed to be a
separate legal entity and entitled to hold property.
43. We are, therefore, of the opinion that AWHO, though
registered under the Societies Registration Act, has certain
characteristics which would enable it to hold the property and
therefore transfer of the land- cum-superstructure would be by
way of a sub-lease from the lessor i.e. Noida to the lessee
which is AWHO to the sub-lessees who are the individual
allottees, by way of a stamped and registered document.
It is thus found that in the abovesaid decision, the Apex Court
has held that the Society registered under the Societies Act is
the legal entity deemed to be quasi corporation and entitled to
hold the property.
25. In the light of the abovesaid discussions, when it is
found that as per Section 6 of the Societies Registration Act,
every Society registered under this Act may sue or be sued in
the name of the President, Chairman, or Principal Secretary or
trustees as shall be determined by the Rules and Regulations of
the Society and, in default of such determination, in the name
of such persons as shall be appointed by the Governing Body for
the occasion and also further provided that it shall be
competent for any person having a claim, or demand against the
society, to sue the President or Chairman, or Principal
Secretary or the trustees thereof, if on application to the
governing body some other officer or person be not nominated to
be the defendant and thereby when it is seen that the Society
must sue or be sued through a person nominated in that behalf
and accordingly when as above pointed out, when as per the
Memorandum and Rules and Regulations of the plaintiff Society,
the plaintiff Society is entitled to sue through its Secretary
as above noted, in such view of the matter, in my considered
opinion, in the light of the decision of the Constitution Bench
of the Apex Court reported in AIR 1962 SC 458 and the decision
reported in 2010 9 SCC 354, the plaintiff society is entitled to
maintain the suit through its Secretary in accordance with the
Memorandum and Rules and Regulations marked as Ex.A5 and
accordingly, the substantial question of law is answered.
26.In the light of the abovesaid discussions, the
judgment and decree dated 08.03.2005 passed in A.S.No.6 of 2004
on the file of the District Judge of Nilgiris at Udhagamandalam,
confirming the judgment and decree dated 30.09.2003 passed in
O.S.No.115 of 1998 on the file of the Subordinate Court,
Udhagamandalam, are confimed. Resultantly, the second appeal is
dismissed with costs. Consequently, connected miscellaneous
petition, if any, is closed.
Sd/-
ASSISTANT REGISTRAR
TRUE COPY
SUB ASSISTANT REGISTRAR
bga
To 1. The District Judge of Nilgiris at Udhagamandalam. 2.The Subordinate Judge, Udhagamandalam. 3.The Section Officer, VR Section, High Court, Madras. +1cc to Mr.S.K.Raghunathan, Advocate Sr.24578 S.A.No.959 of 2008sv[co]
srg 25/11/2021
2 issues framed by the court
Could the registered charitable society maintain its possession and damages suit through its Secretary authorised by its rules?
Did the society's exemption from rent-control legislation permit the civil court to entertain the suit?
Colour shows how this judgement treated each authority
Illachi Devi (dead) by Lrs and others vs. Jain Society, Protection of Orphans India and othersApplied¶61
(2003) 8 Supreme Court Cases 413
Church of North India vs. Lavajibhai Ratanjibhai and othersReferred¶29
(2005) 10 Supreme Court Cases 760
Gorakh Hilal Patil and another vs. Parit Samaj Seva Mandal, Shirpur and anotherReferred¶28
2012 2 Mah LJ 177
Chief Conservator of Rorests, Govt. of A.P. vs. Collector and othersReferred¶28
2003 3 SCC 472 · Who else cites this
Application Nos. 2450 of 2007 and 2894 of 2006Relied on¶34
Ayurvedic and Unani Tibia College v. State of DelhiRelied on¶114
AIR 1962 SC 458 · Who else cites this
State of Rajasthan & others vs. Aanjaney Organic Herbal Pvt. Ltd.Referred¶75
CDJ 2012 SC 631
Bal Niketan Nursery School vs. Kesari PrasadReferred¶76
CDJ 1987 SC 747
Commissioner of Income Tax, Kerala & Coimbatore vs. L.W.RusselReferred¶77
CDJ 1964 SC 291
Shiromoni Gurudwara Prabandhak Committee vs. Som Nath DassReferred¶78
CDJ 2000 SC 202
Dulichand Lakshminarayan vs. Commissioner of Income Tax, NagpurReferred¶79
CDJ 1956 SC 098
Bharat Aluminium Company vs. Kaiser Aluminium Technical Services Inc.Referred¶80
CDJ 2016 SC 084
Ganga Sahai vs. Bharat BhanReferred¶83
CDJ 1950 ALL HC 044
Benares Hindu University vs. Gauri Dutt JoshiReferred¶84
CDJ 1949 ALL HC 160
Jain Society for the Protection of Orphans for India vs. State of DelhiReferred¶85
CDJ 2001 DHC 1221
K.C. Thomas vs. R.L.GadeockReferred¶86
CDJ 1969 BIHAR HC 030
Vijayakumar vs. Roman Catholic Church, represented by Rev. Father J. Anthony JosephReferred¶87
CDJ 2001 MHC 1264
Mulla Gulam Ali and Safiabai D. Trust vs. Deelip Kumar and Co.Referred¶88
(2001) 1 LW 652
Ranjan Devasahayam vs. Hindustan Bible Institute of IndiaReferred¶89
(1996) 1 LW 533
Shaik Atham Sahib vs. Daoud SahibReferred¶91
(1909) ILR (Madras) 469 · Who else cites this
V. Irudhayaraja vs. The procurator of Society of St. Mary's East Veli Street, MaduraiReferred¶92
S.A.(MD) No.27 of 2017
J. Asolin vs. The Society of Francis Xavier, PalayamkottaiReferred¶93
S.A(MD) Nos, 56 to 60, 73 & 74 of 2020
3 provisions across 3 enactments
M/s. Nilgiri Petroleum Company
The Nilgiri Diocesan Society
T.RAVINDRAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court