PONNUSWAMY Vs. NAMBEESAN

JUDGEMENT

(1.) The late Shri N Sundara Iyer was a distinguished Advocate of this Court. He was a man of learning as well as benevolence He was an ardent supporter of the Bhoodan Movement. In 1957 when Shri Vinoba Bhave came to Kerala, Shri Sundara Iyer made a gift of about 15 acres of land in Vadakkanchery. Little had he apparently realised then what complications were to arise later out of his philanthropy.

(2.) The gift was made to the plaintiff who is the 1st respondent in this second appeal filed by the 1st and 2nd defendants. The gift was not made to the plaintiff personally, but, as found by the courts below, in his official capacity as President of the Gram Daan Sarvodaya Cooperative Society ('the Society') and as Secretary of the Gandhi Asramam. It was an oral gift to start with; and the gift deed (Ext A1) was registered in 1963. The Society passed a resolution (Ext. A2(a)) dated 24th April 1963, allowing the plaintiff, his wife and defendants 1 and 2 to cultivate the land covered by Ext. A1 by means of pooling through a Cooperative Farming Society. This farming Society soon got into difficulties and was finally wound up. In the course of winding up, the liquidator who was appointed by the Registrar of Cooperative Societies directed that the land which was pooled should be separately held by the persons mentioned in Ext. A2(a): i e., by the plaintiff, his wife and defendants 1 and 2 Subsequently, the Society by resolution dated 9-4-1973 (Ext. A3) decided that the possession of the land mentioned under Ext A2 (a) was to be delivered back to the Society. This resolution was complied with by the plaintiff and his wife. But the 1st and 2nd defendants refused to deliver possession of the properties to the Society. These defendants contended that the properties held by them belonged to them absolutely as they were gifted to them directly in 1957 by Shri Sundara Iyer under an unregistered document which they did not produce in court.

(3.) Since the 1st and 2nd defendants refused to deliver possession and since the liquidator had directed that possession be retained by the persons mentioned under Ext. A2(a), a suit was instituted by the plaintiff against defendants 1 and 2 as well as the 3rd defendant the liquidator, and the 4th defendant the Registrar who appointed the liquidator. Various contentions were raised by the defendants in their statements. Defendants 3 and 4 being public officers contended that in the absence of a notice under S.80 CPC., the suit against them was not maintainable. Defendants 1 and 2 contended that the suit was not maintainable because: (a) notice under S.80 CPC not having been issued to defendants 3 and 4 who are public officers, the suit was barred by law and it was liable to be dismissed in limine; and (b) the subject matter of the suit being a dispute coming under S.69 of the Cooperative Societies Act, 1969, the civil court had no jurisdiction to entertain the suit. They further contended that they were owners in possession of the suit properties and were not liable to surrender the same.