M. KESAVA GOUNDER Vs. D. C. RAJAN

JUDGEMENT

(1.) THE first defendant in O.S. No. 146 of 1963, on the file of the Additional Subordinate Judge, Salem, is the appellant in A.S. 846 of 1967. Defendants 3 and 4 in the said suit are the appellants in A.S. 13 of 1968. The first plaintiff is the brother -in -law of the first defendant (sister's husband) and the second plaintiff is the concubine of the first defendant's father. The second defendant is the fist defendant's brother. The 3rd and the 4th defendants are the alienees of some of the suit items of properties and the rest of the defendants are either alienees from the first defendant of some other items of suit properties or the tenants in occupation of one or the other items on the suit properties. The father of defendants 1 and 2 is said to be a leader of Vanniakula Kshatria community in the village and is said to have earned a reputation of his own. He had considerable properties and under Ex. B -1 dated 4 -9 -1929 he effected a partition as between himself, the first defendant and other coparceners of the family. It is some items of the properties which the first defendant obtained in the said partition, which are the subject -matter of a trust created by him under Ex. A -1, dated 16 -6 -1951. Under Ex. B -2, it is said that Muthu Gounder himself executed a settlement in respect of some other properties with which we are not concerned in favour of the first defendant. It is also stated that in or about June 1951, the first defendant has executed a gift deed of some of the properties obtained by him from his father in favour of his sister, who is the wife of the first plaintiff. Ex. B -44 is the registration copy of the said gift deed.

(2.) THE first defendant in his written statement while admitting the relationship between the parties says that his father was not the elder in the community and that he was living apart from his father, since he was afraid of him. He pleads ignorance of the fact that he wanted to erect a statue of his father in the suit properties even during his lifetime, and drew up a scheme for the perpetual maintenance of such a statue. According to him Ex. A -1 was forced out from him by his father, who asked him to sign some documents, which he did not understand and it was all due to the machination of the second plaintiff as the concubine of Muthu Gounder. It is also said that the first plaintiff had also a considerable influence over his father -in -law. According to the first defendant, he was treated as a condemned man in the family and Ex. A -1 was prepared behind his back and without his knowledge and consent. He claims that the document is vitiated by fraud and undue influence by the beneficiaries and the other trustees. He pleads ignorance as to the contents of Ex. A -1, and does not admit that he made any of the devises or bequests as reflected in Ex. A -1, nor any part of the trust deed was ever acted upon or given effect to and it was never intended to be acted upon hereafter. According to him the possession of the properties always remained with him and the first plaintiff did not assume possession of the suit properties at any time under any capacity. He denies that any rents were collected by the first plaintiff along with him as trustees of the above trust and that a sum of Rs. 4,500 was spent by the first plaintiff from out of his own moneys to close the unused well.

(3.) THE 4th defendant denies the allegations in the plaint that the trust was acted upon. He, as an alienee, says that since the trust was not acted upon and it is also unenforceable, the alienations made by the first defendant in his favour and in favour of the other defendants are valid. The 4th defendant as a mortgagee of some of the suit properties has also obtained a sale of a part of it under valid registered instruments and the 1st plaintiff, who had at no time possession of the properties, nor exercised his office of trusteeship over the suit properties, cannot claim any right over the same or seek for the relief as asked for.