Society formed 29 May 1976 sold community land by 31 May: Madras HC confirms sale is void

Justice V. Lakshminarayanan dismissed a second appeal by the heirs of the buyer, holding that a society which never received the property could not sell it, that the community suit needed no Section 92 leave, and that an old revision order bars re-opening the amendment.

A society was registered on 29 May 1976. By 31 May it had passed a resolution, signed a registered sale deed for Rs 15,000 and ratified the sale. On 11 November 2026 the Madras High Court held that the society never owned the land it sold, and confirmed a decree that has stood since 1997.

Justice V. Lakshminarayanan dismissed a second appeal by the legal heirs of the buyer, M. Jawaharlal Bhora. The plaintiffs, members of the Besthava Naidu Community of Kancheepuram, keep their declaration that the sale does not bind the community. They also get costs throughout.

A 1983 suit over community land

Members of the Besthava Naidu Community sued in 1983 as O.S.No.92 of 1983 in the Sub Court at Kancheepuram. They asked for a declaration that the sale deed of 31 May 1976 was null and void, and for delivery of possession.

Their case was that the land was an Inam grant held for the community's upliftment and managed by community heads. The second defendant, they said, had managed it as trustee and obtained a ryotwari patta in the community's name during Inam abolition.

The first three defendants, they alleged, then formed an association as if it represented the community. That association sold the land to the fourth defendant for a nominal Rs 15,000, without authority, necessity or sanction of law.

The plaintiffs had formed their own society, registered in 1976, and said a resolution of 13 February 1977 authorised its office bearers to sue. They sent a notice on 6 August 1976 before filing.

What the defendants said

The third defendant admitted the land was Inam property. He said it was granted to the forefathers of the first and third defendants, who were Pallaki bearers, and that the income paid for a ritual offering to Lord Sri Varadaraja.

The general body, he said, elected office bearers on 20 May 1976 and registered the Besthava Naidu Sangam on 29 May. On 30 May it resolved to sell part of the land because it yielded no income, and authorised the sale deed.

The fourth defendant, who bought the land, pleaded that he was a bona fide purchaser. He said he paid a fair price, deposited it in the Sangam's name in the Co-operative Town Bank, and spent about Rs 20,000 improving the land.

He also said the plaintiffs were strangers with no standing. Both defendants argued that the suit was barred by Section 92 of the Code of Civil Procedure and Order I Rule 8.

Two courts, one decree

The Principal District Munsif, Kancheepuram, decreed the suit on 23 April 1997 in O.S.No.43 of 1996.

The buyer's appeal, A.S.No.72 of 1997, was pending before the Subordinate Judge, Kancheepuram, when he died. His legal heirs were brought on record. The appeal was dismissed on 28 February 2017.

The High Court admitted the second appeal on 27 February 2018 on five substantial questions about the trust, Section 92 and the jurisdiction of the trial court. At the hearing the appellants added six more, on pleadings, representative suits, the missing society and the burden of proof.

The first of the five admitted questions asked:

“Whether the trial Court which is the District Munsif Court, Kancheepuram has got any jurisdiction to entertain the suit relating to a Trust and which of public nature still proceed with the suit?” (para 21)

Arguments for the appellants

Mr N. Manokaran argued that publication under Order I Rule 8(2) was never effected, even though an order for it was passed on 21 February 1994. He said the society that sold the land was not made a party, and that nothing was pleaded as Order VI Rule 4 requires.

Mr N. Jothi, Senior Counsel, attacked the amendment of the cause title in I.A.No.461 of 1986. He argued that no trust was shown, that a private trust over immovable property needs registration under the Indian Trusts Act, and that Section 92 applied.

For the plaintiffs' side, Mr Y. Jyothish Chander said the defendants themselves had admitted the trust. He pointed to the buyer's reply notice and the written statements, and to documents from 1920 through the Inam abolition proceedings treating the land as trust property.

Public trust, so Section 92?

The court first had to say what kind of trust this was. It took the test from Deoki Nandan v. Muralidar and Mahant Ram Saroop Dasji v. S.P. Sahi: who holds the beneficial interest. In a private trust the beneficiaries are definite and ascertained. In a public trust they are an unascertained, shifting and fluctuating body.

A trust for a section of the public still counts as public, the Supreme Court had said, if the individuals within it remain unascertained and fluctuating. The land was held for the whole Besthava Naidu Community, so the court held it a public trust and rejected the private-trust argument.

That also disposed of the Indian Trusts Act point. The court noted that the Act applies only to private trusts, so its registration requirements did not arise.

Why Section 92 did not apply

A public trust does not mean every suit about it must go through Section 92. The court listed what the section covers: removal or appointment of trustees, vesting property in a trustee, accounts and inquiries, and settling a scheme of management.

A suit to declare a sale deed void falls outside that list. The second relief, possession, was sought against a third-party purchaser. The court called this a suit to enforce the community's property rights against an outsider, with nothing to do with internal administration.

It said it was restating Mahant Pragdasji Guru Bhagwandasji v. Patel Ishwarlalbhai Narshibhai, recently approved by a three-judge bench in The Jamia Masjid v. Sri K.V. Rudrappa. The suit was rightly filed under Order VII Rule 1 with Section 34 of the Specific Relief Act.

Order I Rule 8 and the newspaper notice

The buyer's side argued that no publication was made under Order I Rule 8. The defendants had not taken this plea earlier, but the judge allowed it as a pure question of law. He called for the records of I.A.No.462 of 1986, the plaintiffs' application to sue in a representative capacity.

The Subordinate Judge had allowed that application on 21 February 1994 after a contest, though the order did not mention publication. The records showed a notice had in fact appeared in one issue of the newspaper Makkal Kural on 6 February 1988.

The court then gave a second reason. It was undisputed that the plaintiffs belong to the community, so no Order I Rule 8 application was needed at all. For that it relied on Kalyan Singh v. Chhoti, applied in Hari Ram v. Jyoti Prasad.

In Kalyan Singh, the court noted, a three-judge bench held that any member of a community may sue to assert rights in community property or to remove encroachment, without complying with Order I Rule 8.

The judge added that Punjab and Haryana High Court decisions treat such an objection as open only to persons not before the court. Defendants who were served and took part cannot use it to defeat the suit.

The society nobody sued

The appellants argued that the society that executed the sale should have been made a party. The court found the plea was never taken in the trial court or the first appellate court, and Order I Rule 13 treats such objections as waived unless raised at the earliest chance.

It also looked at Section 99 of the Code, which bars reversal for non-joinder except of a necessary party. A necessary party is one in whose absence no effective decree can pass. The court held the society was not even a proper party.

The plaintiffs' case was that the first three defendants, as trustees, could not alienate the land. That could be decided without the society. The court held, relying on Illachi Devi v. Jain Society, that a registered society is not a juristic person, so it could not be a necessary party.

An amendment settled in 1993

The cause title was amended on 7 August 1992 in I.A.No.461 of 1986, replacing the words that showed the community represented by a district Sangam with a description of it as represented by plaintiffs 1 to 4. The first and third defendants challenged this in CRP.No.1876 of 1993.

Justice K.M. Natarajan dismissed that revision on 21 December 1993. The buyer had not challenged the amendment order. Justice Lakshminarayanan held that he could not do so now.

The Supreme Court in Satyadhyan Ghosal v. Deorajin Debi had applied res judicata to successive stages of one litigation. The dismissed revision made the amendment final, and anyone aggrieved should have gone to the Supreme Court. Having failed to do so in 1993, the judge said, the appellant could not do so in 2026.

He also dealt with Section 105(1), which lets a party challenge interlocutory orders in an appeal against the decree. Res judicata barred that route. Even without it, estoppel applied, since the buyer took part in the later proceedings and left the order to become final.

The court followed a Madras decision in Kolandayammal v. K. Mani and distinguished a Kerala decision, Swami Premananda Bharathi, which involved a nullity. The appellants never called the amendment a nullity, and an erroneous order still binds as res judicata.

Fifty years of treating it as community land

The judge called the title question the crucial one. In 1920 the second defendant sued in O.S.No.542 of 1920 for possession, claiming to represent the community, and was decreed it. He took possession in execution.

Under the Tamil Nadu Minor Inam abolition law, a patta first went to the second defendant for survey numbers 1751/1 to 1751/6. He appealed, argued that the land was community property rather than his own, and won a remand.

After remand a patta was granted in the name of Besthava Madapam Trust for several of those numbers. The court said these documents show the land was treated as community property for at least 50 years before the suit.

The defence evidence, it noted, was no help to the buyer. The third defendant admitted that only 12 persons attended the meeting of 20 May 1976 that decided to form the Sangam, and that there was no proof the property passed from the community to it.

The buyer, as DW2, said he did not know who owned the land. He spoke of an agreement, but none was produced. The defendants had taken a local lawyer's opinion and then formed the Sangam to sell the land.

Nemo dat and a hurried sale

Property of a public trust cannot be sold at the trustees' will, the court said. Trustees must show legal necessity or benefit to the trust, and court permission is needed, which would have meant a Section 92 application. That route was not taken.

Until the trust property vested in the Sangam, the Sangam had no right to sell it, and no document showed it did. On that point the judge said:

“no one can give what he does not have” (para 75)

He called the Sangam “an utter stranger to the trust property” (para 76). The society was formed on 29 May 1976, and by 31 May the land had been sold, the deed registered and the ratifying resolution passed.

The court relied on R. Venugopala Naidu v. Venkatarayulu Charities, which follows Chenchu Rami Reddy. Endowment property must be zealously protected, and private sales out of public view should not be allowed without special reasons. None was pleaded or shown, so the device of forming the Sangam could not be valid.

The questions answered

The court answered all the admitted questions against the appellants. The suit was rightly filed under Order VII Rule 1 with Section 34 of the Specific Relief Act, and Section 92 did not apply.

On the added questions it held that Order VI Rule 4 pleading did not arise, because the case was that the sellers had no title, not that a rightful owner had been defrauded. The sale deed was rightly declared void and not binding on the community.

Order

The second appeal was dismissed. The judgment and decree of the Subordinate Court, Kancheepuram, in A.S.No.72 of 1997 dated 28 February 2017, and of the Principal District Munsif in O.S.No.43 of 1996 dated 23 April 1997, were confirmed.

The plaintiffs are entitled to costs throughout. The connected miscellaneous petition, C.M.P.No.2164 of 2018, was closed. The judgment was reserved on 22 July 2026 and pronounced on 11 November 2026.