NARAYANA PILLAI Vs. KESAVA PILLAI

JUDGEMENT

(1.) A .S.No.482 of 1957 is by the plaintiffs 3 and 4,and A.S.No.30 of 1958 by the 2nd defendant in O.S.No.31 of 1956 on the file of the Subordinate Judge,Mavelikara.The suit was to set aside a gift executed by the trustee,1st defendant,in favour of the 2nd in respect of certain trust properties,for removal of the 1st defendant from trusteeship and for framing a scheme for the future management of the religious trust.

(2.) THE plaintiffs and defendants 1 to 73 were members of a Nayar tarwad.There was a partition in the tarwad,evidenced by Ext.A dated Mithunam 21,1076 M.E.The three branches in the tarwad divided most of their tarwad properties among them,leaving some properties in common for certain religious and charitable purposes to be managed by the 1st defendant.The 1st defendant mismanaged the trust,and appropriated all profits for his selfish ends.On January 30,1950,the 1st defendant executed a gift of some of the suit properties by Ext.C in favour of the 2nd defendant,his nephew and son inlaw,as if they belonged to himself absolutely.He had no authority to make the gift;the same has therefore to be set aside,the 1st defendant removed from trusteeship and a proper scheme for the future management of the trust framed by the court. The contesting defendants claimed several of the suit items as their own,not subject to the trust.The 2nd defendant questioned further the competency of the plaintiffs to institute the present suit and contended that no trust was created by Ext.A. The Subordinate Judge found that a valid trust for religious and charitable purposes has been created by Ext.A,that the plaintiffs being members of the beneficiary tarwad were competent to institute the suit,that the suit properties have been dedicated to the trust,except items 46,48 to 52,and 54 to 56 which belonged to defendants 2,85,95 and the tavazhi of defendant 24 and that the 1st defendant having died during the pendency of the suit no question of his removal from trusteeship arose but there being no provision for the continued management of the trust in Ext.A a scheme for its management was called for in this suit.A preliminary decree was therefore passed in respect of the suit properties(except the aforesaid items)declaring them to be trust properties and adjourned the case for passing a final decree incorporating a scheme for its management,It is from this judgment that the present appeals have been preferred by plaintiffs 3 and 4 and the 2 nd defendant.

(3.) THE suit trust is created by the provisions of Ext.A.It is admitted that items 46,48,52,54,55 and 56 do not find express mention among the properties set apart for the trust in Ext.A.The contention is that the aforesaid items belong to the tarwad and not having been allotted to any of its branches in the partition under Ext.A came within the purview of the residuary clause in that deed which provided that any properties discovered subsequently as belonging to the tarwad and not divided under it should go along with the properties set apart for the trust.The contention that the aforesaid items belonged to the tarwad is challenged by counsel for the contesting defendants. It is averred in the plaint that the suit properties were made the subject of a claim for partition by the present 73rd defendant in O.S.No.55 of 1107 on the file of the District Court,Quilon,which claim,though allowed by the Trial Court,was dismissed by the High Court on appeal finding that they belonged to an impartible trust.The judgment of the Trial Court in that case is Ext.E,and of the High Court Ext.B in this case.Counsel for the plaintiffs relied on Ext.B where it has been observed referring to Ext.A:"some properties were given for charity and a separate scheme was agreed on for the management of this charity " ;.This is too vague an observation to found a decision on.What the properties set apart for the charity or the trust are not indicated in Ext.B or E.Those observations cannot therefore be of any assistance in deciding whether the disputed items were among the properties found to have ben set apart for the religious and charitable purposes in Ext.A. Reliance was placed by counsel for the plaintiffs in the pleadings in the aforesaid suit,O.S.No.55 of 1107,to show that the present contesting defendants have admitted there that the suit properties belonged to the tarwad.Ext.E,the judgment of the Trial Court,shows that these properties were claimed by the plaintiff in that suit as properties of the tarwad liable to be partitioned among the members of its three branches.The present 2 nd defendant,as the 23rd defendant therein,supported that claim in full and therefore it is contended that he has admitted the suit items to belong to the tarwad.It is further contended that the 24th defendant,who was the 19th defendant in the prior suit,was a minor and her guardian ad litem had not entered contest in the suit nor filed a written statement therein;and that conduct of the guardian amounted to an admission binding on the minor that the suit properties belonged to the tarward.Apart from the above,no other evidence has been adduced in this case to show that these disputed items belong to the tarwad.The judgments Exts.E and B,found the properties not to belong to the tarwad and therefore dismissed that suit.The admissions if any made by the defendants 2 and 24 in that suit were therefore held not correct by the court.It is clear law that a party can show that an admission made by him on a former occasion was not,in fact,correct.An admission by a party in his pleading in one suit is seldom taken as binding on him in other suits.( See Ramabai Shrinivas v.Government of Bombay - - AIR 1941 Bombay 144 ).In the case of the 24th defendant who claims suit items Nos.46 and 48 as the separate properties of her tavazhi,the basis of the contention is a conduct imputed on her through the inaction of her guardian ad litem.Failure to deny the allegations in a plaint may be taken as an admission of the claim therein for the purposes of that suit,but not for purposes of subsequent litigations.See Mt.Diali v.Lachhman Singh(AIR 1946 Lahore 256 ).It is too much to say that,even after a claim advanced in a plaint has been repelled by the judgment in the case,the support a defendant had offered to that claim would still bind him and disallow him from relying on the findings in that case.I hold that the plaintiffs have not made out that the aforesaid suit items belonged to the tarwad.If only the properties are shown to have belonged to the tarwad,there is any scope for the application of the residuary clause in Ext.A.It then follows that the finding entered by the Subordinate Judge that the aforesaid items do not belong to the suit trust is correct and has to be affirmed.