PACHAIYAPPAN Vs. KAMATCHI AMMAN KOIL DEVASTHANAM

JUDGEMENT

(1.) THE legal representatives of the plaintiff are appellants herein. THE plaintiff filed O. S. No. 254 of 1972 for declaration that the plaintiff is entitled to collect the rent and to perform Thai Poosam Festivals as per the terms of the will dated 1. 1. 1913 executed by one Sundarambal, wife of Palani Pathar. THE case of the plaintiff is as under: THE suit property originally belonged to one Palani pathar, who died leaving behind him his wife Sundarambal as his sole Legal representative. THEy did not have any issues. Sundarambal in turn executed a will dated 1. 1. 1913 in respect of the suit property stating that l/4th of the rent accrued from the suit property shall be utilised for the payment of taxes and towards repairing charges. THE remaining portion of 3/4th of the rent should be spent for Subramanya deity of Kamatchiam-man temple during Poosam festivals in the month of Thai. It was also stated therein that the Testator's brother-in-law Pavadai pathar and Vaiyapuri Pathar and after them their descendants shall collect the income from the suit property and utilise the sae for the purposes as stated above. It was further submitted that after the death of Pavadai Pathar and his son Vyapuri Pathar, their descendants should celebrate the Thai Poosam festivals as stated above. THE plaintiff is the wife of Vyapuri Pathar. According to her, after the death of her husband, she was celebrating the Poosam festivals as stipulated in the abovesaid Will. THE second defendant is the lessee under the plaintiff and had been paying the rent to her. For the past 12 months the second defendant did not pay the rent representing that the first defendant is claiming the rent and the same has been paid to him. THE first defendant is suited to be Kamatchi Amman Koil Devasthanam, represented by its president, Gopal Pathar. According to the plaintiff, the first and second defendants have colluded together in order to deprive the plaintiff of her rights of management as per the will dated 1. 1. 1913. THE plaintiff issued a notice dated 9. 2. 1972 to the first and second defendants reiterating her rights. THE first and second defendants sent their respective replies through their Advocates , THE third defendant is the lessee under the second defendant. Hence, the suit.

(2.) . The case of the first defendant is as under: It is not correct to state that the plaintiff was performing the Thai Poosam festivals as alleged by her. The plaintiff is not a descendant of the said Vyapuri Pathar. Therefore, she is not entitled to collect the rent from the suit property and perform the Poosam festivals as per the will dated 1. 1. 1913. The plaintiff never conducted the Poosam festivals as alleged by her. After the death of Vyapuri Pathar the second defendant was conducting the Poosam festivals on behalf of Agana Group. The second defendant became one of the membe r in the temple Committee and performed the festivals. Since the public was dissatisfied with his performance of festivals, the temple committe took over the performance of the festival for the past ten years. The second defendant occupied the house as a lessee of the first defendant, and executed a registered lease deed to that effect. The second defendant was paying the rent to the first defendant. Since the first defendant took steps to evict the second defendant, he colluded with the plaintiff in filing the present suit. According to the will dated 1. 1. 1913, the real intention of the testra-trix was that if the descendants of Vyapuri Pathar failed to conduct the Poosam festivals, the Agana Group would conduct and if they also failed, the temple committee would conduct the Poosam festivals by collecting the rent from the suit property. It was therefore, pleaded that the suit as framed and filed by the plaintiff is not maintainable.

(3.) ON the other hand, the learned counsel appearing from the first defendant/first respondent herein submitted as under: The plaintiff cannot call herself as descendant of her husband Vyapuri Pathar. As per the will dated 1. 1. 1913, it is only the descendants of Vyapuri Pathar alone can perform the Thai Poosam festivals from and out of the rental income from the suit property. It is not correct to state that the plaintiff was conducting the Thai Poosam festivals as alleged by her. The first defendant is collecting the rent from the second defendant since he is the tenant under the first defendant. In the absence of any document to the said Vyapuri Pathar, the next line of descendant would be the first defendant. Therefore, the first defendant is entitled to collect the rent from the suit property and perform the Thai Poosam festival. The term "descendant'is explained in Art. 745 of French Civil Code. According to the said Article, a wife is not considered as a descendant of her deceased husband. In order to support his contention, the learned counsel also relied upon a decision of this Court rendered in Sundamm Iyer v. Sarojini, (1984)1 M. L. J. 255. For all these reasons, the learned counsel submitted that the first appellate court was correct in holding that the plaintiff is not entitled to perform the Thai Poosam festivals. Ultimately, it was pleaded that the first appellate court was correct in holding that the first defendant is entitled to collect the rental income from the suit property and perform Thai poosam festival. It was, therefore, submitted that inasmuch as the conclusion arrived at by the first appellate court was in accordance with the abovesaid provisions of the French Civil Code and the decision of this Court stated supra no interference is called for.