GOPALAKRISHNASWAMY PICTURETRUST Vs. NATHASWARAM GOVINDASAMY PILLAI

JUDGEMENT

(1.) The unsuccessful plaintiff in both the courts below is the appellant.

(2.) The case in brief is as follows:- The plaintiff Trust filed a suit to direct the defendant to deliver possession of the property and to pay future mesne profits from the date of plaint till delivery of possession. The suit property originally belonged to Subba Pillai and he died leaving behind his only son Ramasamy Pillai. The said Ramasamy Pillai had three sons, namely, Rajagopala Pillai, Govindasamy Pillai and Mahadeva Pillai. Ramasamy Pillai and his sons divided their joint family properties under a registered partition deed dated 11.06.1919. Govindasamy Pillai is the father of the plaintiff. Rajagopala Pillai executed a registered Will while he was in a sound and disposing state of mind on 02.07.1956. Rajagopala Pillai and Mahadeva Pillai died without any issues; but Rajagopala Pillai was treating one Balasubramaniam as his foster son. By the Will dated 02.07.1956, Rajagopala Pillai gave properties to his relatives. Items 1 and 2 of A schedule property have been specifically set apart for a Religious Trust. Out of the income from these properties, payment of municipal tax and repairs have to be done and the balance of the income should be spent for pooja and Deepam of Gopalakrishnaswamy Picture worshipped by Rajagopala Pillai during his life time in the house bearing door No.43, Kaliyamman Koil Street, Kumbakonam. Part of the income also should be spent for Deeparathanai to all the Deities coming on the Arudhra Dharishanam Festival day every year. These properties cannot be alienated or encumbered in any manner. The foster son was given right to enjoy these properties and do the above Religious Trust mentioned in the Will. He had no power to alienate any property to any third party against the provision of the Will. But contrary to the terms of the Will, he had sold door No.43 to one Nagarajan, the elder brother of the plaintiff. Subsequently, the said Nagarajan had sold a portion of the property to the defendant under a registered sale deed dated 07.12.1965. The plaintiff is the lawful hereditary trustee and owner of Sri Karpaga Vinayakar Temple, one of the Trust mentioned in the partition deed. The plaintiff is also interested in the proper conduct of the Trust and he is also a worshipper of all the Deities. The other sons of Govindasamy Pillai are not taking any interest in the Trust. The sale deed dated 07.12.1965 is not valid in law and it is also not binding on the Trust and there is no necessity to seek for cancellation of sale deed. Hence the suit. The defendant contended that the plaintiff had no locus standi to file the suit. No property has been set apart for any Religious Trust. Only from the income of items 1 and 2 of A schedule, Deeparathanai and pooja are provided for. No property as such is dedicated . The restrain on alienation is not of any importance in the circumstances of the case. The testator had himself encumbered the properties. The property purchased by Nagaraja Pillai was much improved upon and a portion of such property has been sold to the defendant for a valid consideration. The sales and improvements are bona fide and valid. He converted the mud walls into brick walls and spent a sum of Rs.10,000/=. The plaintiff is not a lawful or hereditary trustee of Vinayakar Temple. Without setting aside the alienation made by Balasubramaniam, the plaintiff is not entitled to any relief. The sale by Balasubramaniam and that by Nagarajan to this defendant are of the years 1960 and 1965 and they were for value. The defendant is in possession of the property from 1965 onwards. The claim is also barred by adverse possession. The rear portion of door No.43 is in possession of one Kalyani Ammal as owner and she has converted the building into a terraced one. Door No.42 is in possession and occupation of one Vijayaraghavan and the suit is bad for non-joinder of necessary parties. The trial court framed 8 issues and on behalf of the plaintiff, P.Ws.1 and 2 were examined and Exs.A-1 to A-36 were marked and on the side of the defendant, D.Ws.1 to 3 were examined and Exs.B-1 to B-11 were marked. The trial court dismissed the suit and aggrieved against this, the plaintiff preferred A.S.No.67 of 1989 on the file of District Court, Thanjavur and the learned Judge after hearing the parties, dismissed the appeal and aggrieved against this, the plaintiff has come forward with the present second appeal.

(3.) At the time of admission of the second appeal, this Court framed the following substantial questions of law for consideration: (1)Whether the courts are right in construing the recitals under Ex.A-2 Will dated 02.07.1956 to the effect that no dedication is made in favour of an endowment merely on the ground that surplus, if any after meeting the expenses of the religious acts was allowed to be utilised by the person in Management. (vide AIR 1967 page 175) (2) Whether the testator under Ex.A-2 Will has mainly intended to reserve the substantial income from the suit properties for the purpose of performing the religious acts contemplated by him and allowed only an insignificant portion of the balance income if any to be taken by the person in management, are not the courts below erred in law in holding that no complete dedication is made by the testator in favour of an endowment ? (3) Are not the courts below erred in law in holding that the presence of idol is necessary to constitute an endowment overlooking the fact that what is important is the place which creates a sense of reverence under the belief that God resides there or a edifice devoted to divine worship is contemplated ? (vide 1986 II MLJ 390)