VENKATARAMA NAIDU Vs. JAYAMMAL

JUDGEMENT

(1.) THE appeal is instituted by the defendants in the Court below (the Court of the learned Subordinate Judge of Tiruchirapalli) in a suit for recovery of possession and future mesne profits, which was" decreed as prayed for. In view of the interesting issue that has been raised in this appeal, by learned counsel for the appellants (Sri K. Rajah Iyer) of the application of the principle of adverse possession to a person in a fiduciary capacity, who had not acquitted himself by re-delivering the property to the representative of the trust, it is important to proceed into the precise facts in some detail.

(2.) A certain Venkatarama Naidu had two sons, namely, Veerasami Naidu, who died in 1921, and Vengama Naidu, who died m 1924. Vengama Naidu had a son govindaraja, who died in 1941, and a daughter, Seethammal, who died in 1943. This Govindaraja had a first wife, Jayammal, by whom he had a son, Venugopal, who died as a minor in January 1945; it will be pertinent to state that Venugopala was born in 1929. Thayararammal is the second wife of Govindaraja, and the two widows, namely, Jayammal and Thayarammal, were the plaintiffs in this suit. Seethammal, the sister of Govindaraja, had two sons, who are the defendants-appellants. These are the essential relationships between the members of this family.

(3.) ON the 1st September 1919, Veeraswami Naidu, the brother of Vengama Naidu, who died without male issue in 1921, executed a deed of settlement Ex. A. 1 by virtue of which, indisputably, he settled certain endowments for the discharge of a private religious trust, or charity. In this document, besides particularising the properties so endowed, the settlor states that the details of the charities were the performance at the samadhi of Venkatachalapathi Swarm in Tirupathi, and at srilingam, of a charity of feeding bhagavatars on certain dates, and the construction of a new bhajanai matam, wherein bhajana with deepa, dhoopa, neivedyyam on specified occasions were to be performed. It is not in dispute that this settlor claims that his two wives, who had no male issue, were not properly attending to him, and that, hence, he was executing the document in favour of vengama, imposing on his brother the obligations of the trust. It is further not in dispute that on 1-5-1935, Govindaraja, the son of Vengama. in his turn, executed another deed of settlement Ex. A. 2. The moot point is whether this deed of settlement is an augmentation of the earlier trust, or a supersession of it by the creation of what is virtually a new trust. In any event, there can be no doubt that, though Ex. A. 2 is related in determinate ways to the earlier trust Ex. A. 1 it is an endowment of different properties for objects that have undergone some modifications. For instance, the objects are specified to be the construction of a Venugopalaswami temple, and the performance of worship therein, in supersession of the bhajanai matam referred to in Ex. A. 1. The point whether this is an augmentation of the prior trust, or a supersession of it by the creation of a substantially new trust, is really academic, and not of great importance. In any event, after endowing the properties, the settlor Govindaraja declared as follows: