KAMALAM Vs. SIVAPRAKASAM PILLAI

JUDGEMENT

(1.) The legal representatives of the original plaintiffs are in appeal before us challenging the validity and correctness of the judgment and decree passed by the High Court dismissing the suit by reversing the judgment and decree passed by the first appellate court.

(2.) One Arunachalam Pillai executed a Will in respect of the properties in question, inter alia, providing that the income from those properties should be spent for the purpose of religious charities and the legatees under the Will, Vadivel Pillai and sivagurunathan, were to perform the charities and after their lifetime, their "santhathis" were to perform the charities. The original plaintiffs, namely, Sadasivam and thyagarajan, are the sons of Vadivel Pillai and the appellants herein are their legal representatives. The first defendant in the suit, pattu Achi, is the widow of Sivagurunathan, who had executed a Will in favour of the second defendant (the first respondent herein) bequeathing the second schedule properties absolutely to him, pursuant to which the second defendant is in possession of the properties.

(3.) The original plaintiffs filed a suit for recovery of possession of the suit properties contending that after the death of sivagurunathan, they alone were entitled to the possession as the sons of the other legatee and the widow of Sivagurunathan could not be considered as 'santhathi"; that the testator intended that the management of the Trust should be with the issues of vadivel Pillai and Sivagurunathan alone as he never intended the widow to assume management of the trust properties; and that it was not open to her to create a new line of succession. The second defendant filed written statement contesting the suit on the ground that the clause in the Will that after the lifetime of Vadivel Pillai and sivagurunathan, their "santhathis" are to perform the charities is a repugnant one and even if that clause is not repugnant, the expression "santhathi" used in the Will includes their heirs, and that after the demise of sivagurunathan, his wife was in possession and enjoyment of the suit properties and she had perfected her title by adverse possession against the plaintiffs. The trial court dismissed the suit accepting the plea of adverse possession and held that the plaintiffs could not seek recovery of possession. Aggrieved by the judgment and decree of the trial court, the plaintiffs filed first appeal. The first appellate court accepted the plea of the plaintiffs on both counts, namely, that the expression "santhathi" did not include Pattu achi and the first defendant had not perfected her title by adverse possession. In that view of the matter, the appeal was allowed and the suit filed by the plaintiffs was decreed. The second defendant challenged the judgment and decree passed by the first appellate court by filing a second appeal in the high Court. The learned single Judge of the high Court allowed the second appeal and set aside the judgment and decree passed by the first appellate court by a considered judgement. The learned Judge held that the expression "santhathi" in given circumstances of the case included Pattu Achi, wife of Sivagurunathan.