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Sobhanadreswara Rice Mill Company and ors. Vs. Brahmachari Bavaji Mutt, Vijayawada - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtAndhra Pradesh High Court
Decided On
Case NumberAppeal No. 421 of 1969
Judge
Reported inAIR1973AP292
ActsGeneral Clauses Act, 1897 - Sections 8; Transfer of Property Act, 1882 - Sections 105
AppellantSobhanadreswara Rice Mill Company and ors.
RespondentBrahmachari Bavaji Mutt, Vijayawada
Appellant AdvocateP. Babulu Reddy and ;P. Balakrishna Murthy, Advs.
Respondent AdvocateI. Balaiah, Adv.
Excerpt:
.....by the learned counsel for the appellant that the scheme providing for the appointment of an executive officer was unconstitutional as also inconsistent with the provisions of the new act ( act xvii of 1966 ). i would however like to say that while a scheme which drastically curtails the powers of a mahant in regard to the administration of the affairs of a math may perhaps be declared unconstitutional at the instance of the mahant or a chela or even a person belonging to the religious denomination concerned, i do not think it is open to a person like the defendant to raise the question. i would also like to say that i am not prepared to hold that a scheme settled under act ii of 1927 and deemed to be settled under act xix of 1951 will cease to have any force on the passing of the..........receiver, can it be said that he is precluded from suing to recover possession of some of the suit properties even after the disposal of the suit in his favour, merely because the accounts filed by him as receiver have not been passed by the court and there is no formal order of the discharge. there can be little doubt that he need not await the formal order discharging him from receivership. the situation in analogous here and i hold that the executive officer was competent to bring the suit though not discharged from receivership.8. the next submission of the learned counsel was that the defendant had prescribed a right to a permanent tenancy. his argument ran thus : the last of the registered deeds of a lease ( of the year 1944 ) as well as every one of the prior deeds of lease.....
Judgment:

1. The defendant in O. S. No. 85 of 1967, on the file of the Court of the Subordinate Judge, Vijayawada is the appellant in this appeal. The plaintiff-respondent is Sri Brahmachari Bavaji Math, Vijayawada represented by the Executive Officer, appointed by the Commissioner for Hindu Religious and Charitable Endowments. The suit was laid for possession of land consisting of two items of the extent of 1260 and 681/2 square yards, for damages for use and occupation from 1-5-1964 till 30-5-1967 and for future damages. The case of the plaintiff was that the land belonged to the Math which was under the management of the Executive Officer appointed by the Commissioner for Endowments. The defendant firm was the lessee of the first item under a registered lease dated 24-5-1944 for a period of five years from 1-4-1944 to 30-6-1949. The rent stipulated was Rs. 55 /- per month. The defendant also annexed the second item and for the both the items the defendant was paying a consolidated rent of Rs. 73.50 per month. After the expiry of the original period of lease the defendant continued as a tenant holding over. As the rent originally stipulated was very low, in order to safeguard the interests of the Math, the plaintiff issued a notice on 29-4-1964 terminating the defendant's tenancy and demanded delivery of vacant possession. The defendant admitted the tenancy but refused to vacate the land. The plaintiff had, therefore, to file the suit to recover possession. The plaintiff claimed damages at the rate of Rs. 300 /- per month.

2. The defendant filed a written statement contending the suit. The right of the Executive Officer to maintain the suit was questioned. It was pleaded that the tenancy of the defendant was not terminable, that it was 'a tenancy by prescription', and that the defendant had a right to renew the lease at its option. There was no valid notice to quit as the lease was one for a manufacturing purpose and hence the tenancy could not be determined with fifteen days' notice. The learned Subordinate Judge overruled the pleas of the defendant and decreed the suit for ejectment. The learned Subordinate Judge also held that the defendant was liable for damages for use and occupation from 1-11-1966. The profits were directed to be determined in a separate proceeding under O. XX, Rule 12, Civil Procedure Code. The defendant has appealed.

3. Sri Babulu Reddy, learned counsel for the appellant, contended that the Executive Officer was not competent to maintain the suit as the scheme under which he was appointed as Executive Officer by the Commissioner could not be considered to be in force any longer after the coming into force of Act 17 of 1966. In any case, the scheme was void as it offended Article 26 of the Constitution. He also contended that the defendant had acquired by prescription the right of permanent tenancy and no decree for eviction could, therefore, be passed against the defendant. Lastly he submitted that there was no proper notice to quit.

4. I will first consider the question whether the suit was maintainable at the instance of the Executive Officer. A scheme was settled for the administration of the Math by the Board of Commissioners for the Hindu Religious and Charitable Endowments on 15-7-1929 under the Madras Hindu Religious and Charitable Endowments Act 1926. The scheme was modified by the Board of Commissioners on 7-7-1944 as it was felt that the Math and its properties were being mismanaged. Under the modified scheme the administration of the Math and its endowments became vested in Mahant Nirbhan Gokuldas Bavaji and two non-hereditary trustees. The Board of Commissioners was given the power to appoint an Executive Officer to carry on the day to day administration of the institution. The Executive Officer was the person entitled to sue and liable to be sued on behalf of the institution. He was authorised to receive the income and incur expenditure on behalf of the Math. He was to be in possession of all the properties of the Math, to lease out the lands of the Math in open auction and to take registered lease deeds. Pursuant to the modified scheme an Executive Officer was appointed to take charge of the Math and its properties. Sri Mahant Nirbhani Gokuldas Bavaji, Mathadhipathi of the Plaintiff-Math died sometime in the year 1947 and since then there has been no validly appointed Mathadhipathi for the plaintiff-Math. Two persons put forward their rival claims to be Mahants of the Math but their claims were negatived by the learned Subordinate Judge of Vijayawada in suits instituted by them. The High Court confirmed the judgment of the learned Subordinate Judge negativing their claims.

The position, therefore, is that at present the Math is without a Mathadhipathi and it has been so for the last several years. Its properties are in the possession of an Executive Officer appointed by the Commissioner for Hindu Religious and Charitable Endowments under the modified the scheme. Whether the modified scheme is valid or invalid, whether the appointment of an Executive Officer is or is not permissible under Act 17 of 1966, the undisputable fact is that the Executive Officer alone is managing the properties of the Math and it is to him only that the defendant-firm itself had admittedly been paying rents all these years. As the person in management and possession of the Math and its properties, the Executive Officer filed the present suit to recover the properties belonging to the Math. What should be noticed at once is that the suit is laid by the Executive Officer not in his personal capacity but on behalf of the Math. The Executive Officer has claimed the property to be the property of the Math which he is entitled to recover as the Manager in possession of the Math and its properties. No doubt he cannot be considered to be a de facto Mahant or even a chela. No doubt his right to manage the properties of the Math is derived from the scheme framed by the Commissioner for Hindu Religious and Charitable Endowments. But as a person in actual possession of the Math and its properties he is competent to institute a suit to safeguard the properties of the Math and to recover possession of the properties of the Math, not for his own benefit but for the benefit of the Math itself.

The right of a defacto manager of a religious institution to recover the properties of institution has long been recognised by the Courts in our country. In Mahant Ramcharan Das v. Nawarangilal, 60 Ind App 124 = ( AIR 1933 PC 75 ), the plaintiff claimed to be the Mahant of a Math instituted a suit to recover possession of the properties belonging to the Math. Their Lordships of Privy Council observed that they were not concerned with any question of title, because both the Courts below had found that the plaintiff was the person in actual possession of the Math and as such entitled to maintain a suit to recover property not for his own benefit but for the benefit of the Math. In Mahadeo Prasad Singh v. Karia Bharati, 62 Ind App 47 = ( AIR 1933 PC 75 ) the principle that a person in actual possession of the Math could maintain the suit for its benefit was reiterated by their Lordships of the Privy Council notwithstanding the fact that the plaintiff had not been installed as the Mathadhipathi and was not a chela of the previous Mahant. True, in both the cases the respective plaintiffs claimed to be the Mahants of the Maths but that should not make any difference since their right to maintain the suit was upheld not because of their claims to Mahantship or because they were Mahants de facto but because of their actual possession of the Math and its properties. In a later case, D. Ponnambala Desikar v. Periyannan Chetti, ILR 59 Mad 809 = ( AIR 1936 PC 183 ) their Lordships of the Privy Council preferred to use the expression ' de facto manager ' to describe the person who was functioning as the head of the Math without any legal title to the office, claim to such title having been negatived in an earlier proceeding. Such a description would fit the Executive Officer in the instant case even if his appointment was invalid either for the reason that the scheme was unconstitutional or for the reason that the appointment was inconsistent with the provisions of the new Act. The rationale of the rule permitting a ' de facto manager ' in possession and management of a temple or math to institute a suit to recover possession of the properties of the institution was stated thus by Wadsworth, J., in Subramania Gurukkal v. Abhinava Poornapriya Srinivasa Rao Saheb, AIR 1940 Mad 617 :

'It is the duty of the Court to protect the trust property from misappropriation and diversion from the objects to which it was dedicated. When trust property is without a legal guardian owing to any defects in the machinery for the appointment of a trustee or owing to the unwillingness of the legal trustee to act, it would be a monstrous thing if any honest person recognised as being incharge of the institution and actively controlling its affairs in the interests of the trust should not be entitled, in the absence of any one with a better title, to take those actions which are necessary to safeguard the objects of the trust. '

5. Wadsworth, J., was quoted with approval by the Full Bench of the Madras High Court in Sankaranarayana v. S. P. Temple, AIR 1949 Mad 721 ( FB ). The observations of Wdasworth, J., appear to be tailor-made for the present case since admittedly the Math is without a Mahant and the Executive Officer is the person who is actively managing the Math and its properties. It would be ' monstrous ' if he were not allowed to bring the present action to safeguard the interests of the Math.

6. I am, therefore, of the view that irrespective of the validity of his appointment as Executive Officer of the Math, the suit was maintainable at the instance of the Executive Officer. In this view it is unnecessary to go into the questions so elaborately argued by the learned Counsel for the appellant that the scheme providing for the appointment of an Executive Officer was unconstitutional as also inconsistent with the provisions of the new Act ( Act XVII of 1966 ). I would however like to say that while a scheme which drastically curtails the powers of a Mahant in regard to the administration of the affairs of a Math may perhaps be declared unconstitutional at the instance of the Mahant or a Chela or even a person belonging to the religious denomination concerned, I do not think it is open to a person like the defendant to raise the question. I would also like to say that I am not prepared to hold that a scheme settled under Act II of 1927 and deemed to be settled under Act XIX of 1951 will cease to have any force on the passing of the Act XVII of 1966 for the reason that the latter Act does not contemplate either the settlement of a scheme for any religious endowment or, in any case, the appointment of an Executive Officer for a Math. Section 8 of the General Clauses Act provides that the repeal of an enactment shall not affect anything done before the commencement of the Act. It is, of course, subject to Section 4 of the General Clauses Act which says that Chapter II ( which includes Section 8 ) shall apply to all Acts made after the commencement of the Act unless a contrary intention appears in such Acts. Far from any contrary intention appearing in Act XVII of 1966, Section 109 (3) expressly saves and provides for the applicability of Section 8 of the General Clauses Act. Now the scheme in the instant case was settled under Act II of 1927. After the passing of Act XIX of 1951, the scheme was deemed to be a scheme under the Act by virtue of S. 103 (a). It was as if the scheme was settled under Act XIX of 1951. Section 8 of the General Clauses Act, therefore, saves the scheme. Sri Babulu Reddy contended that Section 8 did not have the effect of saving ' anything done ' if such thing projected into the future. There is no substance in this submission. A reading of Section 8 clearly shows that most of the things which are saved by Section 8 do project into the future. It is enough to glance at Clauses (d) and (f) to come to the conclusion that Section 8 is not restricted in its applicability to past actions which do not project into future. I am therefore of the view that the appointment of an Executive Officer under a scheme settled prior to the coming into force of (sic) Act XVII of 1966 is not prescribed by Act XVII.

7. Another argument advanced by the learned Counsel against the maintainability of the suit by the Executive Officer was that the latter had been appointed as a Receiver of the properties of the Math in O. S. No. 21 of 1949 by the Sub-Court, Vijayawada and the suit was not maintainable as the permission of the Court had not been obtained by the Receiver. O. S. No. 21 of 1949 was one of the suits filed by a claimant to the office of the Mahant of the Math. The Executive Officer was no doubt appointed as a Receiver on 29-8-1952 but the suit itself was dismissed on 8-2-1956 and the appeal was also dismissed on 19-12-1963. The Executive Officer has not been formally discharged from receivership but he does not now claim the right to manage the Math and its properties because the Court appointed him as a receiver but because he is an Executive Officer appointed by the Commissioner under a scheme. The Executive Officer possesses a dual capacity. He is a receiver appointed by the Court and he is also a ' Manager ' appointed under the scheme. It is in the latter capacity that he has filed the suit. There cannot be any bar to his filing the suit in such a capacity. Take the analogy of a party to an action being appointed as a Receiver. When the litigation ends in favour of the Party Receiver, can it be said that he is precluded from suing to recover possession of some of the suit properties even after the disposal of the suit in his favour, merely because the accounts filed by him as receiver have not been passed by the Court and there is no formal order of the discharge. There can be little doubt that he need not await the formal order discharging him from receivership. The situation in analogous here and I hold that the Executive Officer was competent to bring the suit though not discharged from receivership.

8. The next submission of the learned counsel was that the defendant had prescribed a right to a permanent tenancy. His argument ran thus : The last of the registered deeds of a lease ( of the year 1944 ) as well as every one of the prior deeds of lease from 1913 onwards contained a clause which gave an opinion to the lessee to renew the lease. The last of the leases expired in 1949 but the defendant was allowed to continue as a tenant holding over for more than 12 years. Therefore the defendant acquired perpetual tenancy right. I am afraid not. The last of the leases like all the earlier leases contained a clause which gave the lessee an option to renew the lease. If the lessee, without obtaining a renewal, continued in possession as a tenant holding over, I do not see how he can acquire perpetual occupancy rights by merely continuing as a tenant holding over for over 12 years. A tenant holding over continues on the same terms. If he wants to prescribe for higher rights he must do so overtly and to the knowledge of the lessor. At no time before the filing of this suit did the defendant claim permanent tenancy rights and he has therefore no better rights than a tenant holding over.

9. The last and the feeblest of the submissions of Sri Babulu Reddy was that there was no proper notice to quit under Section 106 of the Transfer of Property Act. He urged that the lease was for a manufacturing purpose and hence six months' and not fifteen days' notice was necessary. But Section 106 merely deems a tenancy for an agricultural or manufacturing purpose to be an yearly tenancy in the absence of a contract to the contrary. But where the stipulation, as in the present case, is that the rent should be paid monthly, the tenancy can only be considered to be a month to month tenancy. Rent under the lease deed of 1944 was payable monthly and that was how rent was payable and was being paid after the expiry of the period of lease. There is therefore no substance in this submission.

10. In the result, the appeal is dismissed with costs.

11. Appeal dismissed.


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