- (1.) THE above second appeal is preferred by the defendant in the suit who is a tenant under the plaintiff. THE suit is for recovery of possession. THE plaintiff is a society represented by its Secretary. THE plaintiff claimed that it is a Muslim Religious Charitable Trust, whereas the defendant contended that the plaintiff is a Society and it is not established by the plaintiff that it is a Muslim Religious Charitable Trust, hence the suit is not maintainable in the Civil Court inasmuch as the defendant is entitled to the benefits of the Tamil Nadu Buildings (Lease and Rent Control) Act, and according to the defendant, the remedy of the plaintiff, if any, should be only by taking appropriate proceedings under the Rent Control Act. THE defendant further contended that the Notice to Quit was not in consonance with the provisions of Section 106 of the Transfer of Property Act. That contention of the defendant was sought to be met by the plaintiff by invoking the provisions of G. O. Ms. No. 2000 Home dated 16. 08. 1976 exempting all buildings owned by a hindu, Christian or Muslim Religious Public Trusts and Public Charitable Trusts from all the provisions of the said Act. THE contentions of the defendant were accepted by the Trial Court, but the Lower Appellate Court rejected the same and held that the Notice to Quit is valid and the suit is maintainable and reversed the judgment of the Trial Court.
(2.) AT the time of admission of the second appeal, the following substantial questions of law have been framed: "1. Whether the burden of proof as to competency to institute a suit does not lie on the person claiming to have such competency? 2. Whether a society registered under the Societies registration Act (1860) can be a Religious Public Trust or a Public Charitable trust as defined in G. O. Ms. No. 2000, Home dated 16. 08. 1976? Whether the word "trust" is used in g. O. Ms. No. 2000 Home dated 16. 08. 1976, does not refer to trusts created as per the provisions of the Indian Trusts Act (1882)? Whether a Registered Society, which is not created either by a Registered Trust Deed, or by a Testamentary Instrument creating a trust, can institute a suit to evict a tenant from premises to which the Tamil nadu Buildings (Lease and Rent Control) Act applies?" 3. Heard Mr. Srinath Sridevan learned counsel for the appellants and Mr. T. P. Sankaran learned counsel for the respondent. 4. Though the above said substantial questions of law have been formulated, the learned counsel for the appellants confined his submissions only in respect of Substantial Questions of law 2 and 4. He fairly submitted that the contention as to Notice to Quit will not survive in view of the Transfer of Property (Amendment) Act 2002, which applies to pending cases. The learned counsel further submitted that the respondent does not fall under the purview of the G. O. Ms. No. 2000, which was is in super-cession of the earlier g. O. Ms. No. 1998. Under G. O. Ms. No. 2000 all Public Religious and Charitable trusts'would not fall under the purview of the Tamil Nadu Buildings (Lease and rent Control) Act 1960 and would be exempted from its provisions, significantly the G. O. Ms. No. 1998 exempted "all religious trusts and charitable institutions" from the purview of the Tamil Nadu Buildings (Lease and Rent control) Act 1960. The G. O. Ms. No. 2000 then superceded the previous order and allowed only public religious and charitable trusts to be exempted from the purview of the Act. The learned counsel relied upon Section 3 of the Indian trusts Act, 1882, which reads as follows: "a "trust" is an obligation annexed to the ownership of property, and arising out of a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of another, or of another and the owner". and submitted that there are four main ingredients which constitute a trust, they are as follows: 1. Author of trust 2. Beneficiary 3. Trust Property 4. Legally enforceable obligation annexed to ownership.
(3.) THE learned counsel for the appellants submitted that though the Indian Trusts Act 1882 is not applicable to Public Trusts, since no definition is given elsewhere as to what is a trust, the definition given under the Indian Trusts Act 1882 can be used in order to understand the meaning of a trust. According to the learned counsel, the respondent is not a trust as described under Section 3 of the Indian Trusts Act for the following reasons: (i) THE respondent is a society, no doubt having the purpose of the benefit of the Muslims in Nagore. However, not every Muslim can become a member of the society. For a person to become a member of the trust, he must be a respectable person with social standing, more than 18 years and must give an application along with the membership fee and the committee of the society will then decide whether such person can become a member of the society. Only then a person can become a member vide bye-law II of Ex. A-3. While in case of a religious or public trust, every member of that religion or the general public, is a beneficiary of the trust. (ii) Secondly, for an institution to be a "trust" there must be a legally enforceable obligation annexed to the ownership of the property and not merely a moral obligation. Here there is no such obligation annexed to the property held by the respondent. In a society, the obligation is not annexed to the property but to the office bearers. By way of example, if the respondent was a trust, any Muslim of Nagore could institute a suit to enforce the obligations of the Trustees. However, no such suit would lie, in the case of a society, since Section 92 of the Code of Civil Procedure has no application thereto. Only a member of the society can institute a suit against the society, to compel performance of its objects, and not any Muslim of Nagore, as in the case of a trust. The learned counsel for the appellants relied upon the following decisions: (i) 2001 (2) Law Weekly 736 (Vijayakumar Vs. Roman catholic Church) (ii) 2004 (3) M. L. J. 682 (Natarajan Vs. Saliyur Mahajana sangam, Mayiladuthurai) (iii) 2006 (2) M. L. J. 528 (Rajamanickam K. (died) Vs. Periyar Self-respect Propaganda Institution, Trichirapalli) (iv) A. I. R. 2005 Kerala 233 (Abhaya, A. Society Vs. J. A. Raheem) (v) 100 Law Weekly 182 (Guhan, etc. S. Vs. Rukmini Devi arundale, etc.);