RAJAMMAL Vs. SELLANI AMMAL

JUDGEMENT

(1.) THE defendants 2 and 3 against whom the suit for declaring the plaintiff's entitlement to the suit property, for recovery of the same from them, and for mesne profits was decreed are the appellants. THE plaintiff Sellani Animal filed a suit alleging as follows: THE suit properties of wet lands of an extent of 6.61 acres described in the B Schedule of the plaint originally belonged to one Krishna Rao who by a deed dated 29.1.1984 endowed the properties for performance of pooja, neivedyam and other ubhayam to Lord Nataraja at Chidambaram. He also appointed Vrishabadwaja Dikshidhar to be the trustee of the properties to manage the same and do the said poojas etc., As per the deed, after the said trustee, his sons and grand-sons are to manage the properties and do the poojas etc. THE trustee or his heirs will not have any power to alienate the properties. Accordingly, Vrishabadwaja Dikshidhar acting as trustee was in possession of the properties and he was doing poojas etc. After the death of Vrishabadwaja Dikshidhar, his brother's son Kalyanasubramania Dikshidhar took the management of the properties and he was also doing poojas etc. THE plaintiff is the widow of the said Kalyanasubramania Dikshidhar. It appears that he executed a Will on 17. 4.1950 (Ex.A-3) giving the trusteeship right to the first defendant (who is now dead) and died on 19.4.1950. Kaly-anasubramania Dikshidhar had no right to do so. He has no such power under the deed Ex.A-1 executed by Krishna Rao. THE deed itself specifies as to who should be the successive trustee after Vrishabadwaja Dikshidhar. THErefore the Will is incompetent in so far as it relates to the trusteeship of the endowment. THE plaintiff being the next of kin and only heir is entitled to the trusteeship. THErefore, the defendants 2 and 3 who are in possession of the properties have to surrender it to the plaintiff. She came to know about the existence of the trust regarding the suit properties only in 1973, and it was then she filed an amendment petition in a suit filed by her in O.S.No.596 of 1972 for enhanced maintenance against the first defendant from out of her husband's estate. In spite of several requests the defendants never tried to deliver possession to her and therefore the suit. THE plaintiff has prayed for a decree declaring the plaintiff's entitlement to the suit properties as per the terms of the trust deed dated 29.1.1894 (Ex.A-1) and consequently directing the defendants to put the plaintiff in possession of the properties and further directing the defendants to pay mesne profits till date of delivery of possession and for costs.

(2.) THE defendants 2 and 3 contested the suit contending, inter alia, that the plaintiff has no locus standi to file the suit, She has no right to be the trustee for the suit properties. Kalyanas-ubramania Dikshidhar was competent to execute the Will (Ex.A-3), dated 17. 4.1950 in respect of the suit properties. Under the Will Natarajan alias Dhanarethina Dikshidhar, the first defendant got absolute right to the suit properties. THEre was a compromise entered in to between the plaintiff and Natarajan in O.S.No.52 of 1953 and as per the compromise decree, the said Natarajan got absolute right to the suit properties and as provided in that decree Natarajan alias Dhanarethina Dikshidhar had been maintaining the plaintiff. THE present suit is barred by the principles of res judicata. As provided in the Will executed by Kalyanasubramania Dikshidhar the first defendant has been doing the poojas, etc., in the temple and after his death, the defendants 2 and 3 doing poojas, etc., On these contentions, the defendants 2 and 3 prayed for dismissal of the suit.

(3.) THE points that arise for consideration in the second appeal are: (1) Whether Ex.A-l,dated 29.1.1894 executed by Krishna Rao in favour of Vrishabadwaja Dikshidhar is an endowment, or under it the suit properties have been given to Vrishabadwaja Dikshidhar as his absolute properties" (2) Whether the Will Ex.A-3, dated 17. 4.1950 executed by Kalyanasubramania Dikshidhar is valid in so far as the suit properties are concerned" (3) Whether the suit is barred by res judicata in view of the judgment and decree in O.S.No.52 of 1953" (4) Whether the suit is barred by limitation"