NARAYANA PILLAI Vs. DHARMAR

JUDGEMENT

(1.) The plaint schedule properties in O.S. No. 33 of 1964 were endowed in favour of Nithiya Jeya Bhoothalinga Vinayagar deity at Kanya-kulam, for the conduct of poojas to the said Vinayagar deity and for conducting festivals and other ceremonies in the temple. It is a private family trust of the family of the first plaintiff and the father of the first defendant. The first plaintiff's family is Nanjinad Vellala Tarwad and was governed by the Marumakkathayam Law. The said temple and its properties were managed by the Karanavan of the Tarwad as the private family trust. The last office-holder trustee was Subramania Pillai, elder brother of the first plaintiff and the father of first defendant. This Subramania Pillai was in possession and management of the trust properties, in his capacity as a trustee of the Vinayagar temple and conducting the poojas and feasts and other ceremonies from and out of the income of the trust properties. The trustee Subramania Pillai died on 14th July, 1963. The first plaintiff claimed in the suit that he, as the eldest member of the Tarwad, was the Karnavan and was entitled to be the trustee under the Marumakkathayam Law. On the other hand, the first defendant contended that before the Hindu Succession Act of 1956 was passed, the devolution of the office of the trustee was in accordance with the Marumakkathayam Law; but after the Hindu Succession Act, 1956, succession to the trusteeship was governed by the Hindu Succession Act, 1956, and under that Act, the first defendant (as the son of the last office-holder Subramania Pillai), his sisters and mother were entitled to be the trustees of the suit trust and the first plaintiff, the brother of the last office-holder, was not entitled to be a trustee. The Courts below held that "˜trusteeship' was not property, that the Hindu Succession Act was applicable only to succession to "property" and that therefore the Hindu Succession Act was not applicable. They further held that if the Hindu Succession Act was not applicable, it was the Marumakkathayam Law that was applicable and under that Law, the plaintiff being the eldest member of the Tarwad was entitled to be the trustee. The first defendant has filed S.A. No. 1477 of 1967 against these judgments and decrees of the Courts below, in O.S. No. 33 of 1964 and the appeal therefrom.

(2.) The first defendant in O.S. No. 33 of 1964, along with his two sisters and mother, filed O.S. No. 270 of 1964 on the file of the District Munsif, Nagercoil, against the first plaintiff in O.S. No. 33 of 1964 (second defendant in O.S. No. 270 of 1964) and another tenant, for recovery of a sum of Rs. 672 being the value of the arrears of rent in respect of another trust in favour of Bhadrakali Amman Temple, which was also a family trust created and endowed by the ancestors of the parties. Subramania Pillai, the father of the first defendant in O.S. No. 23 of 1964, was also the last trustee of the Bhadrakali Amman Temple. On the death of Subramania Pillai on 14th July, 1963, his son, the first defendant in O.S. No. 33 of 1964 (first plaintiff in O.S. No. 270 of 1964) had filed the suit for recovery of arrears of rent on the ground that under the Hindu Succession Act, he was entitled to succeed to his father as the trustee and entitled to recover the rent payable in respect of the trust properties. O.S. No. 270 of 1964 was dismissed and the appeal filed against the same was also dismissed. The unsuccessful plaintiffs in O.S. No. 270 of 1964, have filed S.A. No. 1476 of 1967.

(3.) The contention of the learned Counsel for the appellants in both the appeals, was that the trusteeships in the instant cases were in the nature of a shebaitship with a beneficial interest in the trust properties and that therefore it is "property". The Hindu Succession Act having superseded the Marumakkathayam Law of succession to property, the trusteeships in the instant cases were governed by the Hindu Succession Act and under that Act, Subramania Pillai's legal heirs were entitled to succeed. In any case, even assuming without admitting that the trusteeship was not property in the strict sense of being beneficially owned, still it is the Hindu Succession Act, that was applicable for determining succession to the trusteeship and that therefore the first defendant, as the son of Subramania Pillai, was entitled to succeed to the trusteeship along with his two sisters and mother. On the other hand, the contention of the learned Counsel for the respondent (brother of Subramania Pillai) was that the Hindu Succession Act, was applicable only to intestate succession to property and that trusteeship being not a property, the Marumakkathayam Law alone was applicable and under that law he, as the Karnavan, was entitled to be in management of the suit trusts.