Ismail Hajee Essa Trust and Abdul Satar Ismail Sait alias Iqbal Sait v. Muslim Educational Society (Registered), Calicut and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.CHITAMBARESH & THE HONOURABLE MR. JUSTICE SATHISH NINAN TUESDAY, THE 21ST DAY OF FEBRUARY 2017/2ND PHALGUNA, 1938 RFA.No. 329 of 2008 ( ) ------------------------ AGAINST THE JUDGMENT & DECREE IN OS 424/2006 of ADDL.SUB COURT, IRINJALAKUDA DATED 30-06-2007 APPELLANT(S): PLAINTIFFS ------------ 1. ISMAIL HAJEE ESSA TRUST 1 B, LOTUS APARTMENTS, DURBAR HALL ROAD COCHIN - 16, REPRESENTED BY ITS TRUSTEE 'TIDES', CARROYN ROAD, PACHALAM, COCHIN - 12. 2. ABDUL SATAR ISMAIL SAIT ALIAS IQBAL SAIT AGED 62, S/O.KHAN SAHIB ISMAIL HAJEE ESSA TRUST 'TIDES', CARROYN ROAD, PACHALAM, COCHIN - 12. BY ADVS.SRI.M.RAMESH CHANDER (SR.) SMT.SANJEETHA.K.A. SRI.ANEESH JOSEPH SMT.DENNIS VARGHESE ## RESPONDENT(S): DEFENDANTS: ----------------- 1. MUSLIM EDUCATIONAL SOCIETY (REGISTERED) CALICUT, REPRESENTED BY ITS PRESENT PRESIDENT, A.ABDUL RAHIM, BUSINESS, AGED 72, SALIM NIVAS KOTTAMUKKU, QUILON - 13. 2. PRESENT GENERAL SECRETARY, C.K.MUHAMED, PENSIONER, AGED 66, WHITE HOUSE, THIRUTHIYAD, CALICUT - 4. 3. PRESENT GENERAL SECRETARY E.P.MOYINKUTTY, PENSIONER, AGED 58, ELATTUPARAMBIL, WANDOOR, MALAPPURAM DISTRICT. 4. ABDUL RASHEED, AGED 47 YEARS, GOVERNMENT EMPLOYEE, KARUKAPPADATHU, AZHIKODE P.O., ERIYADU. RFA.No.329/2008 : 2 : - 5. ABDUL HAQUE, BUSINESS, AGED 64 YEARS MANAPATTU, ERIYADU P.O., KODUNGALLUR (VIA) _**(Deleted)**_ _**(Respondent No.5 is deleted from the party array as per the order dated 3.4.2008 IN I.A.NO.1473/2008 at the risk of the petitioner)**_ 6. DR.NAVAS AYYALLIL (THYCHALIL) AGED 40, DOCTOR, K.J.HOSPITAL, CHANDAPPURA, KODUGALLUR. 7. DR.SIDDIQUE, AGED 70 AYYALIL (KARIKULATHU) AZHIKODE P.O., ERIYADU (VIA) 8. ABDUL JABBAR, AGED 55, BUSINESS PADIYATHU (MANAPPATTU) ERIYADU P.O., KODUGALLUR. 9. ADVOCATE HABEEB, AGED 68 YEARS, ADVOCATE, PADIYATHU (MANAPPATTU) ERIYADU P.O., KODUGALLUR. R1, R3,R4,R7,R8 & 9 BY ADV. SRI.R.D.SHENOY (SR.) R1,R3,R4,R7,R8 & 9 BY ADV. SRI.BABU KARUKAPADATH R. BY ADV. SRI.K.JAYAKUMAR (SR.) R7 BY ADV. SMT.M.A.VAHEEDA BABU R7 BY ADV. SRI.JAGAN GEORGE R7 BY ADV. SRI.K.A.NOUSHAD R7 BY ADV. SRI.P.G.PRAMOD THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 16.02.2017, THE COURT ON 21-02-2017, DELIVERED THE FOLLOWING: 'C.R.' **==> picture [325 x 15] intentionally omitted <==** --------------------- R.F.A.No.329 of 2008 --------------------- Dated this the 21[st] day of February, 2017 J U D G M E N T ## Chitambaresh, J. The controversy in regard to the land, the buildings as well as the administration of M.E.S.Asmabi College, school, hostel etc. needs to be quelled soon lest the students are put to peril. The suit property of extent 25 acres is situate in Kodungallur in Kerala wherein the tourists flock to see the oldest Mosque in India - Cheraman Juma Masjid - built by Malik bin Dinar in 629 AD. 2. 'Ismail Hajee Essa Trust' [hereinafter referred to as 'the Trust'] was founded by one Mr.Essa Ismail Sait with the laudable object of establishing educational institutions. Vast tracts of land lying contiguous were purchased for the purpose under Exts.B1 to B9 sale deeds and structures partially constructed. The defendants thereafter completed the construction and put up _RFA.No.329/2008_ 2 additional structures wherein a college, school and hostel are being run. Disputes arose as regards the management of the educational institutions which has eventually paved the way for the suit at the instance of the Trust. The suit as amended is one for declaration of title as well as the right of management of the institutions and also for recovery of possession. 3. The defendants who are the Society and its office bearers contended that the property was purchased not on behalf of the Trust but by its founder on his own behalf. The defendants pointed out that Exts.A1 and A2 deeds of declaration of Trust were executed long after the execution of Exts.B1 to B9 sale deeds. It is the case of the defendants that there was at any rate an oral gift of the property by the plaintiffs in their favour valid under the Mohammedan Law. The gift was accepted and the semi-constructed buildings were completed wherein the educational institutions have _RFA.No.329/2008_ 3 been functioning for long. The defendants disputed that the plaintiffs had role in the management at any point of time and the institutions have also been affiliated to University. 4. The court below has upheld the oral gift by the plaintiffs in favour of the defendants and has also held that the plaintiffs are not in management of the institutions. The court below has dismissed the suit against which the plaintiffs have come up in appeal producing along with it documents as additional evidence. We heard Mr.M.Ramesh Chander, Senior Advocate on behalf of the appellants and Mr.R.D.Shenoy, Senior Advocate on behalf of the respondents. 5. The acquisition of the property was under Exts.B1 to B9 sale deeds executed in the year 1965 wherein the vendee is Mr.Essa Ismail Sait on behalf of the Trust. The property lying contiguous were so purchased by Mr.Essa Ismail Sait for a purpose discernible from Ext.A1 deed of declaration _RFA.No.329/2008_ 4 of Trust executed in the year 1966. The object of the Trust was to start a college by name 'Asma Beevi Women's College' for imparting education particularly to those of muslim community. Mr.Essa Ismail Sait shall be the Managing Trustee of the Trust for his life time and thereafter his brothers and successors as per the terms thereof. Ext.A2 deed of declaration of Trust was later executed in the year 1997 substantially reiterating the terms contained in Ext.A1 deed. The question to be considered at the outset is as to whether the acquisition under Ext.B1 to B9 sale deeds would enure to the benefit of the Trust or not. 6. Exts.A1 and A2 deeds reflect that the beneficiaries are the public at large and not an ascertained body of persons leading to the conclusion that it is a public Trust. It is not necessary to execute an instrument in writing signed by the author of the Trust and get it registered for the creation of a public Trust. The _RFA.No.329/2008_ 5 same may of course be necessary under Section 5 of the Indian Trusts Act, 1882 which however applies to a private Trust only. What is essential is that there should be an unambiguous expression of intention to divest the interest of the donor for the benefit of the Trust. Such divestiture can be proved by attendant circumstances and it is not necessary that there should be a writing to constitute a valid dedication. We are in this conclusion fortified by the decision in Bihar State Board Religious Trust v. Mahant Sri Biseshwar Das[AIR 1971 SC 2057]. 7. The contention that the property acquired under Exts.B1 to B9 sale deeds before Exts.A1 and A2 deeds would not enure to the benefit of the Trust is unacceptable. The very fact that the vendee in Exts.B1 to B9 sale deeds was described as the Trust shows the intention to treat the property as its corpus. The defendants wanted the acquisition to be treated as that of Mr.Issa _RFA.No.329/2008_ 6 Ismail Sait by applying the 'doctrine of blue pencil' as in contracts. It is their case that the words 'on behalf of the Trust' in Exts.B1 to B9 have to be scratched out to read the vendee as Mr.Essa Ismail Sait himself. The defendants pointed out that the suit not having been filed by Mr.Essa Ismail Sait who derived title under Exts.B1 to B9 sale deeds is to be dismissed. 8. The 'blue pencil test' has been considered in Beed District Central Co-operative Bank Ltd. v. State of Maharashtra and others [2006 (8) SCC 514] as follows:- “10. The “doctrine of blue pencil” was evolved by the English and American courts. In Halsbury's Laws of England, (4[th] Edn., Vol.9), p.297, para 430, it is stated: “430. Severance of illegal and void provisions:- A contract will rarely be totally illegal or void and certain parts of it may be entirely lawful in themselves. The question therefore arises _RFA.No.329/2008_ 7 whether the illegal or void parts may be separated or 'severed' from the contract and the rest of the contract enforced without them. Nearly all the cases arise in the context of restraint of trade, but the following principles are applicable to contracts in general” 11. In P.Ramanatha Aiyar's Advanced Law Lexicon, 3[rd] Edn. 2005, Vol.1, pp.553-54, it is stated: “Blue pencil doctrine (test) - A judicial standard for deciding whether to invalidate the whole contract or only the offending words. Under this standard, only the offending words are invalidated if it would be possible delete them simply by running a blue pencil through them, as opposed to changing, adding, or rearranging words. (Black, 7[th] Edn., 1999) This doctrine holds that if courts can render an unreasonable restraint reasonable by scratching out the offensive portions of the covenant, they should do so and then enforce the remainder. Traditionally, the doctrine is applicable only if the covenant in question is applicable, so that the _RFA.No.329/2008_ 8 unreasonable portions may be separated. E.P.I. Of Cleveland, Inc. v. Basler. Blue pencil rule/test:Legal theory that permits a judge to limit unreasonable aspects of a covenant not to compete. Severance of contract; 'severance can be effected when the part severed can be removed by running a blue pencil through it without affording the remaining part'. Attwood v. Lamont (Banking) A rule in contracts a court may strike parts of a covenant not to compete in order to make the covenant reasonable. (Merriam Webster) Phrase referring to severance (q.v.) of contract. “Severance can be effected when the part severed can be removed by running a blue pencil through it' without affording the remaining part. Attwood v. Lamont (Banking).” To the same effect is the decision in Shin Satellite Public Co.Ltd. v. Jain Studios Ltd. [(2006) 2 SCC 628] arising under the Arbitration and Conciliation Act, 1996. 9. The 'doctrine of blue pencil' can be _RFA.No.329/2008_ 9 called in aid to severe the illegal and void provisions from the contract in order to enforce the rest of it. The offending parts are invalidated (if it would be possible to delete them) by running a blue pencil through them as opposed to changing or rearranging words. The question of enforcing the remainder arises only in a contract and the doctrine cannot be imported to construe a document like sale deed. A reasonable construction of Exts.B1 to B9 sale deeds would lead to the irresistible conclusion that the acquisition was intended to benefit the Trust. It is difficult to apply the 'doctrine of blue pencil' to strike out the words 'on behalf of the Trust' and hold that the acquirer is Mr.Essa Ismail Sait. 10. The contention that the Trust did not acquire title under Exts.B1 to B9 sale deeds is seen seriously urged only in the appeal in contrast to the pleadings in the suit. The assertive pleadings in the plaint are extracted below:- _RFA.No.329/2008_ 10 “.....The properties detailed in plaint A schedule were purchased with these funds for and on behalf of the Trust by Mr.Essa Ismail Sait, thereby dedicating them to the Trust........ The Asmabi College and other buildings, the land on which these buildings are situate, all belong to the Trust and are in its absolute possession and control. Other than the 1[st] plaintiffTrust, neither the Muslim Educational Society, nor any other person has any right over the college, school, hostel, other buildings, movables and other properties of the Trust. No other persons including the Muslim Educational Society have any manner of right over any of these properties. The Muslim Educational Society in particular has no right, possession, control or ownership of the college, school, hostel or right to interfere in the management of these institutions.” The relevant averments in the written statement in this regard is extracted below:- “....It is true that the land in question was purchased by the Trust with the idea of establishing a Junior College..... The Trust, with the intention of establishing a Junior _RFA.No.329/2008_ 11 College, started construction of a building in the plaint schedule property, which they could not complete due to lack of funds........ Then the land and the incomplete building therein with all other improvements were gifted to the M.E.S.and possession was handed over to them in 1967. An oral gift is permissible under Mohammedan Law. No gift deed was executed or registered as it was found unnecessary. For evidencing the gift and its acceptance the original title deeds of the plaint properties were handed over to the M.E.S. then and there. Eversince M.E.S. is in possession of the property without any interference from the Trust. The gift is complete and irrevocable.” 11. It is true that admission by itself cannot confer title to the property as has been held in Avtar Singh and others v. Gurdial Singh and others [(2006) 12 SCC 552]. But an admission made by a party to the suit can be taken in aid for determination of the issue having regard to Section 58 of the Indian Evidence Act, 1872. No fact need to be proved in any proceeding which the parties _RFA.No.329/2008_ 12 thereto agree to admit by any writing under the rule of pleadings in force. The plea in essence in the written statement as extracted above indicates that the Trust had title to the land covered by Exts.B1 to B9 sale deeds. It is the further case that the Trust conveyed the property to the defendants under an oral gift which is permissible under the Mohammedan Law. Thus the title of the Trust as the donor of the property is a fact conceded in the written statement even though there is an omnibus denial in para 9 thereof. 12. The first plaintiff is the Trust represented by the Managing Trustee (as amended) and the second plaintiff is the Trustee who has been examined as PW.1. The first defendant is a Society registered under the Societies Registration Act, 1860 and defendants 2 to 9 were its office bearers. It is beyond comprehension as to how a public Trust could transfer a property by oral gift to such a Society merely because its members are _RFA.No.329/2008_ 13 governed by Mohammedan Law. The Trust and the Society are independent juristic legal entities who are bound by Section 123 of the Transfer of Property Act, 1882 in the matter of gift. A transfer of immovable property by gift can only be effected by a registered instrument signed by the donor and attested by two witnesses. It necessarily follows that neither the Society nor its office bearers derived any title to the property under the oral gift as claimed by them. The finding to the contrary by the court below in answer to issue Nos. 1 and 2 in the suit is palpably wrong and is hereby set aside for the reasons aforestated. 13. The defendants contended that only the Managing Trustee or a person authorised by the Board of Trustees could sue referring to the relevant clauses in Exts.A1 and A2 deeds. The same read as follows:- “(e) To institute, conduct defend, compound, withdraw compromise _RFA.No.329/2008_ 14 adjust, refer to arbitration or abandon any legal or other proceedings, claims or disputes by or against the Trust, and Managing Trustee shall originally represent the Board of Trustees and if found necessary, shall have power to authorise any one or more the Trustees for the purpose and all documents taken or properties purchased acquired or donated in favour of the Trust shall be in the name of the Managing Trustee.” The above only indicates that either the Managing Trustee or any one or more of the Trustees duly authorised by him can represent the Board of Trustees in any litigation. The same does not by any stretch of imagination lead to the inference that the Board of Trustees should authorise any one of the Trustees for the purpose. Ext.A4 letter produced by the plaintiff amply shows that Mr.Essa Ismail Sait who was the Managing Trustee had authorised the second plaintiff. The second plaintiff is none other than the younger brother of the Managing Trustee and was a Trustee by himself _RFA.No.329/2008_ 15 at the time of inception of the suit. Mr.Essa Ismail Sait died pending suit and the second plaintiff thereupon became the Managing Trustee as per the terms of Exts.A1 and A2 deeds. The argument that the Trust was not properly represented in the suit and that the second plaintiff had no locus standi has only to be rejected. 14. The reliefs in the suit are not only for declaration of title and recovery of possession of the property (including buildings) but also pertain to the management. The pleadings as well as the evidence indicate that the structures in the property were incomplete at the time the defendants took over the possession in the year 1967. The construction of the building was completed by the defendants who later obtained the necessary affiliation from the University of Calicut. There is paucity of evidence to find the exact value of the structures put up by the plaintiffs as well as the defendants in the instant case. The defendants _RFA.No.329/2008_ 16 have no case that the plaintiffs granted them a licence acting upon which they had executed a work of permanent character. No plea based on Section 60(b) of the Indian Easements Act, 1882 is seen raised to contend that the licence is irrevocable under the circumstances. The resultant position is that the title over the land could vest in one and the title over the buildings thereon could vest in another which is permissible in law. 15. The principle 'quic quid plantatur solo cedit solo' is not applicable in India which means that the land and the building could be owned by different persons. We do not want to multiply the decisions on the point except to quote Mr.Justice Thomas P.Joseph in Gouri and others v. Xavier Benny and another [2012 (3) KHC 317]. It is held therein as follows:- “The principle quic quid plantatur solo cedit solo which is applicable in England is not applicable in India. Hence the land and the building could be owned by different persons. _RFA.No.329/2008_ 17 Evidence shows that the building in the suit property was constructed by the respondents. Hence it is at the option of the appellants either to pay off the respondents for the building and other structures they have constructed in the suit property or, permit the respondents to remove the building and other structures. In case the appellants desire to pay off the respondents for the cost of constructions made in the suit property, the cost as of now, shall be determined by the Executing court by appointing an Advocate Commissioner at the expense of the appellants.” The defendants are not entitled to the benefits of Section 51 of the Transfer of Property Act, 1882 as a bona fide holder under defective title for the reason that there was no 'transfer'. The need to ascertain the value of the construction made by the plaintiffs and the defendants over the land however arises in the instant case. This is for the purpose of granting an executable decree in case the plaintiffs desire to pay off the value of improvements to the defendants. 16.There is neither a case that the _RFA.No.329/2008_ 18 defendants have trespassed into the property nor is there a case that the property has been entrusted to them by the plaintiffs. But the fact remains that the defendants are conducting the M.E.S.Asmabi College for Women, school, hostel etc. occupying the buildings in the property. The plaintiffs have produced Annexures A1, A2, A3 and A4 communications as additional evidence in appeal to show that they were not completely out of management. We do feel that a deeper probe is necessary as regards the claim for management in addition to the assessment of the value of improvements. We allow I.A.No.2355/2014 producing along with it Annexures A1 to A4 with a rider that the same shall be received in evidence subject to proof. We have no option except to set aside the judgment and decree of the court below and remand the suit for de novo consideration. The court below shall allow the parties to lead further evidence as is necessary and take the proceedings to a logical end within a _RFA.No.329/2008_ 19 period of six months. The court fee if any paid on the memorandum of Regular First Appeal shall be refunded to the appellants and the parties shall appear in the court below on 20.3.2017. The Regular First Appeal is allowed. No costs. Sd/- V.CHITAMBARESH, JUDGE Sd/SATHISH NINAN, JUDGE nj/16.02.2017 //True copy// P.S. to Judge.