Muraleedharan Nair v. Abhilash G.U., Dr. B.R. Ambedkar Smaraka Society, C. Ajith, K.V. Devarajan, and J.M. Joy

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **THURSDAY, THE 18TH DAY OF JULY 2013/27TH ASHADHA, 1935** ## **EX.FA.NO.18 of 2011 ( )** **------------------------(AGAINST THE ORDER DATED 2.6.2011 IN E.A NO.67/2010 IN E.P NO.32/09 IN O.S NO. 51/2009 ON THE FILE OF SUB COURT, NEDUMANGAD.)** ## **APPELLANT(S)/CLAIM PETITIONER:** **--------------------------------------------------** **MURALEEDHARAN NAIR, S/O.GANGADHARAN PILLAI, JAYA BHAVAN, NADUKAITHA, MANICKAL, PULLAMPARA, NEDUMANGADU TALUK.** **BY ADVS.SRI.D.KISHORE, SMT.MINI GOPINATH.** ## **RESPONDENT(S)/COUNTER PETITIONER-DECREE HOLDER AND JUDGMENT** **DEBTORS 1 TO 3:** **--------------------------------------------------------------------------------------------------------------** **1. ABHILASH.G.U, S/O.UNNIKRISHNAN NAIR, AVITTOM, JANATHA ROAD, CHEMPAZHANTHY, THIRUVANANTHAPURAM-695 587.** **2. DR.B.R.AMBEDKAR SMARAKA SOCIETY, REG.NO.T 954/89, KACHANI, KARAKULAM, THIRUVANANTHAPURAM DISTRICT-695 013 REPRESENTED BY ITS PRESIDENT.** **3. C.AJITH, PRESIDENT, DR.B.R.AMBEDKAR SMARAKA SOCIETY, REG.NO.T 954/89, KACHANI, KARAKULAM THIRUVANANTHAPURAM DISTRICT-695 013.** **4. K.V.DEVARAJAN, PADINJATTIL VEEDU, PADINJATTIL LANE, MEDICAL COLLEGE, THIRUVANANTHAPURAM-695 001.** ## ***ADDL.5TH RESPONDENT IMPLEADED:** ## **5. J.M.JOY,** - **T.C.4/2310, JOY BHAVAN, ALANTHARA, THIRUVANANTHAPURAM.** - **ADDL.5TH RESPONDENT IS IMPLEADED AS PER ORDER DATED 18.7.2013 IN I.A.NO.2440/2011.** **....2/-** ## **EX.FA.NO.18 of 2011 ( )** **:2:** **R1 BY ADVS. SRI.G.P.SHINOD (CAVEATOR) SRI.RAM MOHAN.G.(CAVEATOR) SRI.MANU V.(CAVEATOR)** **THIS EXECUTION FIRST APPEAL HAVING BEEN FINALLY HEARD ON 18-07-2013 ALONG WITH EX.F.A NOS.23 AND 25 OF 2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **T.R.RAMACHANDRAN NAIR & A.V.RAMAKRISHNA PILLAI, JJ.** = = = = = = = = = = = = = = = = = = = = = Ex.F.A Nos.18 of 2011, 23 & 25 of 2012 = = = = = = = = = = = = = = = = = = = = = = Dated this the 18[th] day of July, 2013 ## **JUDGMENT** ## **Ramachandran Nair, J.** All these appeals raise a common challenge against the orders passed by the Sub Court, Nedumangad, disposing of three claim petitions filed by the appellant in these appeals. The respondents are the decree holders as well as the judgment debtors. Three suits viz., O.S. Nos. 51/2009, 82/2008 and 84/2008 have been filed by the respective decree holders/plaintiff, for realisation of money. 2. The learned counsel for the appellant submitted that the appellant, being the purchaser of schedule properties through sale deed No.2647/06 dated 29.8.2006, is enjoying the properties after the sale. The documents have been marked as Exts.A, B and C in the impugned order under challenge in Ex.F.A No.18 of 2011. The court below was not right in rejecting the claim petition. The learned counsel relied on the decisions of the Supreme Court in **Vannarakkal Kallalathil** ExFAs.18/11, 23 & 25/12 -:2:- **Sreedharan** v. **Chandramaath Balakrishnan and another** [(1990) 3 Supreme Court Cases 291], **Abdul Jalal** v. **Mariya Financiers** [2002 (2) KLT 107] and **Hamda Ammal** v. **Avadiappa Pathar and 3 others** [(1991) 1 Supreme Court Cases 715] in support of his pleas. The crux of the argument is that he has obtained the property by a registered sale deed and the same could not have been ignored by the court below while rejecting the claim petition. 3. We heard the learned counsel Sri.D.Kishore appearing for the appellant in these appeals, the learned counsel Sri.M.S.Narayanan, Sri.G.P.Shinod and Sri.K.C.Eldho appearing for the respondents. Elaborate arguments have been made by the learned counsel on both sides. 4. The first judgment debtor is a registered Charitable Society. It is submitted by the learned counsel appearing for the respondents that even though in the sale deed it is mentioned that the property has been sold on the basis of a proper decision, but the minutes have not been produced by the him Sri.Narayanan, by relying upon Section 37 of the ExFAs.18/11, 23 & 25/12 -:3:- Trust Act, submitted that unless there is an authorisation in the trust deed to enable the trustee to sell the property, the sale cannot be treated as valid. The contention elaborately put forward by Sri.Narayanan, therefore, is that the claim petitioner has not discharged his burden to prove that a proper and valid document has been executed, in the absence of which, the conclusion arrived at by the court below is perfectly justified. 5. The learned counsel Sri.G.P.Shinod submitted that the evidence of DW1 is clear, in that, there was no proper resolution executing the document. He was a member of the governing body of the Society. It is submitted that the appellant even though has deposed before the court that he had seen the minutes, he has failed to produce the same before the court below. It is, therefore, submitted that the view taken by the court below is correct. These arguments have been supported by the learned counsel Sri.K.C.Eldho. 6. The Society herein, known as Dr. B. R. Ambedkar Memorial Society, is one registered under the Travancore - Cochin Literary ExFAs.18/11, 23 & 25/12 -:4:- Scientific and Charitable Societies Registration Act which is clear from the evidence of DW1 also, who was the former member of the governing body of the above Society. 7. On a reading of the order passed by the court below, we find that in paragraph (14) of the order produced in Ex.F.A No.25 of 2012 as E.A No.15/11 in E.P No.35/09 in O.S No.84/08 there is a finding that the trust property is not liable to be sold by the trustees unless the same was authorised by the document under which trust was created. (Paragraph (16) of the impugned order in Ex.F.A No.18/2011) 8. We are of the view that the property is not a trust property and, therefore, the said conclusion cannot be supported. The Society is one registered under the Societies Registration Act, 1955, and the said Act contains different provisions and normally there will be a bye-law for registration of the Society also. In paragraph (15) of the order it is stated that the property of a Charitable Society is not liable to be alienated by the office bearers or even by the members together. Being so, the President is not competent to alienate the property. What we find from ExFAs.18/11, 23 & 25/12 -:5:- the materials made available in evidence is that none of the relevant registers or documents were placed before the court, by either side and, therefore, the said finding is one rendered without the support of sufficient materials. 9. Of course, the learned counsel appearing for the respondents submitted that the respondents could have adduced evidence only with the assistance of any of the members of the Society in office at that point of time and, therefore, the evidence of DW1, which was not properly challenged by the appellant could be accepted. 10. We are of the view that proper evidence should have been there before the court below before assuming that there was no authorisation for the President to sell the property. All these are matters which normally will form part of the records of the Society and, therefore, oral evidence alone, in that context, cannot help the decree holders to contend that the document is void. Of course, the court below has proceeded correctly, according to Sri.Shinod, in the absence of the evidence on the part of the appellant to substantiate his contentions. In the deposition he ExFAs.18/11, 23 & 25/12 -:6:- gave before the court the stand taken is that he had seen the minutes and was satisfied about the decision of the governing body, but it was not produced by him. Hence, the learned counsel submitted that DW1's evidence was rightly accepted by the court below, even though oral. But, in a matter like this where the court has come to a conclusion that the transaction of sale cannot be recognised, there should have been better evidence in the matter. Coupled with the same, the finding that it is a trust property cannot also be supported. 11. For all these reasons, we allow the appeals and set aside the orders impugned. The matter is remanded back to the court below for fresh adjudication All the parties will be given opportunity to adduce evidence also. 12. It is informed by the learned counsel for the appellant that the property has been sold on 16.12.2011 in O.S No.82 and 84 of 2008 from which, Ex.F.A Nos.23 and 25 of 2012 have arisen. Since we are remanding the whole case to the court below, the sale of the property will stand set aside and appropriate decision will be taken by the court below, ExFAs.18/11, 23 & 25/12 -:7:- within a period of six months from the date of receipt of a copy of this judgment. It is made clear that our conclusions on the merits of the matter are only _prima facie_ and for the purpose of the appeals and the court below is free to dispose of the matter untrammeled by the findings contained herein. The appellant will not further encumber or alienate the property during the pendency of the proceedings. Parties will appear on 12.8.2013 before the court below. The appeals are ordered accordingly. No costs. Sd/- ## **T.R.RAMACHANDRAN NAIR JUDGE** Sd/- **A.V.RAMAKRISHNA PILLAI JUDGE** krj /True Copy/ P.A to Judge