(1.) THIS is an appeal by special leave and arises out of a suit filed by Muthu Bhattar against Seethalakshmiammal and her son Subba Bhattar alias Shanbagakarnnu who was a minor at the time of the institution of the suit. The other defendants were Thiruvathavoor Thirumarainathaswami Temple Devasthanam through its Executive Officer residing at Thiruvathavoor village, Melur Taluk and Thiruvedagam Devasthanam through its trustees, residing at Thiruvedagam Nilakottai Taluk. The suit was for a declaration and possession of 1-7/8 share of the Archakam service in the temple and also to recover 1/8 share in the Inam village of Kelavikulam attached to the Archakam service in the third defendant temple. Other reliefs were also claimed relating to the fourth defendant temple which, however, do not survive in the appeal.
(2.) IT will be of assistance to set out the following pedigree table: <IMG>JUDGEMENT_685_4_1972Image1.jpg</IMG>
(3.) WE are wholly unable to appreciate how on any principle or authority the Division Bench had, in an appeal under the Letters Patent, allowed a point which involved not only law but also facts to be agitated when that point had never been taken even in the plaint or before the trial court, the first appellate court and the high Court in second appeal. It had not been raised even in the memorandum of appeal at any stage. Indeed it was admitted before the first appellate court that the alienation evidenced by ext. B-9 by Parvathiammal was one by way of a gift and was without consideration. It was never pleaded, asserted or claimed by the plaintiff that any consideration had passed for the properties which were the subject matter of the gift by Parvathiammal in favour of Duraiswami. In such a situation it was not open to the Division Bench of the High Court to allow the question of consideration to be raised for the first time and that also without any amendment of the pleadings being allowed and without the defendants having a proper opportunity to meet the case.