M VAITHILINGAM PILLAI DIED Vs. MINOR MARUGANANDHAM

JUDGEMENT

(1.) THE unsuccessful defendant in O.S. No. 197 of 1981 on the file of the Subordinate Judge, Tiruchirappalli, has preferred this appeal challenging the decree and judgement passed in the said suit. THE case of the respondent-plaintiff is briefly as follows:

(2.) AS per the recitals in the Will he has entrusted the performance of the charities to his second wife's son Vaidyalingam Pillai, the defendant herein and the deceased Sivastibramaniam Pillai alias Pitchai Pillai. Sivasubramaniam Pillai died leaving no heir except his wife Ponnurengathammal. She in turn adopted the plaintiff who is no other than her elder daughter's son by a deed of adoption dated 5.2.1976. Prior to the adoption, the performance of the charity was done in rotation for six months by Ponnurengathammal representing her husband for another six months by the defendant, after the death of her husband in 1970.

(3.) THE said suit was resisted by the defendant and in the written statement, it is contended that the plaintiff is not the adopted son of late Sivasubramania Pillai and the adoption by Ponnurangathammal is not true and valid. It is further stated that the said adoption cannot defeat the exclusive right of the defendant to the right of management of the plaint trust or to manage the properties of the same and to conduct the charity in question. It is further stated that the testator Marudiah Pillai has directed that his sons Vaithialingam Pillai and his younger brother Sivasubramania Pillai should enjoy the properties allotted for the suit charity and perform the charity during their life time and thereafter it should be conducted by their senior male heirs. After the death of Marudiah Pillai in 1938, the charity came to be performed by the defendant and Sivasubramania Pillai, Sivasubramania Pillai died in 1968 leaving no male heir. Hence, his male line having become extinct, the defendant became the sole trustee. Sivasubramania Pillai's widow Ponnurangathammal had no right to represent her husband or his state. Further, from the date of death of Sivasubramania Pillai, the defendant has been functioning as the sole trustee and he has prescribed rights to exclusive trusteeship by adverse possession for over the statutory period. It is further stated that against the order passed by the Commissioner, no suit has been filed under S. 70 to set aside or modify the order and the order of the Commissioner has become final. It is also stated that the adoption is contrary to the provisions of the Hindu Adoptions and Maintenance Act. In particular, it is stated that since the right of management had been vested with the defendant on the death of Sivasubramania Pillai and on the extinction of male heir, the plaintiff cannot be divested under the Hindu Adoptions and Maintenance Act. Hence, he prayed for dismissal of the suit. It is further stated that the suit has not been properly valued and proper court fee paid and the suit is barred by Ss. 70 and 108 of the Tamil Nadu Hindu Religious and Charitable Endowments Act.