NEMATHANPATTI M.M. PL. ANNADHANA CHATRAM, THROUGH ITS MANAGING TRUSTEE, M.M. PL. CHOKKALINGAM CHETTIAR Vs. P.K.P.R.M. RAMAN CHETTIAR AND ORS.

JUDGEMENT

(1.) THIS appeal arises out of a suit brought by the appellant as the managing trustee of. a certain charity known as " M.M. PL. Annadhana Chatram" at Nemathanpatti, Ramnad District, for release of a certain land and building from attachment effected in execution of a decree obtained by the first respondent (hereinafter referred to as the respondent) against the legal representatives of one M.M. PL. Palaniappa Chetty.

(2.) PALANIAPPA Chetty was carrying on banking and money lending business in various places in India and Burma with his headquarters at Nemathanpatti. In 1923 the respondent brought a suit against Palaniappa and others in the District Court of Pyapone in Burma for recovery of possession of certain lands and premises with mesne profits. During the pendency of the suit Palaniappa died in 1925, having made a will dated 2nd June, 1925, whereby he bequeathed the bulk of his separate properties to various charities and appointed his two sons Chokkalingam Chetty, the appellant herein, and Kasi Chetty executors under the will to carry out the directions contained therein. These executors were brought on record as the legal representatives of Palaniappa in the suit. Kasi died subsequently and his widow Alamelu Achi was substituted in his place. After a protracted trial the suit ended in a final decree dated 16th October, 1939, directing the appellant and Alamelu Achi to pay to the plaintiff, the respondent in the present appeal, a sum of Rs. 83,131 -13 -0 for mesne profits and costs. This decree was transferred to the Court of the Subordinate Judge of Devakottai for execution and among other properties the house property now in question was attached by order of Court dated 31st January, 1941. The appellant objected to the attachment of the suit property on the ground that it was " a choultry for poor feeding " having been dedicated by his father to the said charity. The objection was overruled by order dated 1st April, 1941. The appellant then filed a petition on 9th April, 1941, under Order 21, Rule 58 of the Civil Procedure Code on behalf of "Nemathanpatti Annadhana Chatram" as the managing trustee thereof claiming that the building placed under attachment belonged to the Annadhana Chatram charity started by his father, that he was feeding Brahmins and other persons every day in that building and that he had no other right therein except the right of a trustee. He accordingly prayed that the property should be declared to belong to Nemathanpatti M.M.PL. Annadhana Chatram and released from the attachment. The claim was rejected by order dated 27th July, 1941, and this suit was brought on 20th November, 1941 under Order 21, Rule 63 to establish the right claimed by the appellant as the managing trustee for and on behalf of the charity to the property attached. The trial Court decreed the claim and raised the attachment, but the lower appellate Court reversed the decree and dismissed the suit holding, among other things, that no dedication of the suit property to any charitable purpose was made out.

(3.) BEFORE considering the question it will be convenient to state a few facts which form the back ground and as to which there has been no dispute before us. Palaniappa Chetty became divided from his sons and his brother's sons in 1919 and his first wife, the mother of the appellant, died in Karthigai of the Tamil year Dunmathi corresponding to November -December 1921. On the 16th day of her death, the concluding day of the funeral ceremonies, Palaniappa started in honour of her memory the charity of feeding the poor in an old building belonging to him in his native village Nemathanpatti. No fund, however, was set apart as an endowment for the purpose at the time. In or about September, 1922, Palaniappa Chetty began the construction of the suit building. The accounts maintained by Palaniappa Chetty between 1923 and 1925 have been filed as Ex. P -3 and they show that Palaniappa was entering the sums spent for the construction of the building in a separate folio headed " Chatram building account." Before the construction was completed, he died, as already stated, in 1925, and the building was finished early in 1926. On its completion an inscription carved in stone with the words " M.M. PL. Nemathanpatti Annadhana Dharmasala " in tamil was fixed above the front doorway. The building as completed includes a small temple devoted to the deity Sri Subramanya built in the traditional style with a gopuram or turret above the roof, a stupi or flag post and a stone peacock, the emblem of the deity, in front. Within the compound of the premises are a small tank and a nandavanam or garden for the supply of flowers for worship in the temple. The building comprises a lecture hall and spacious pials, and the total cost of construction amounted to about 1 1/2 lakhs of rupees.