ILANGO Vs. T. S. GOPALKRISHNAN

JUDGEMENT

(1.) THE plaintiffs in O.S. No. 100 of 1968 on the file of the Subordinate Judge's Court, Tirunelveli, are the appellants. The plaintiffs are the minor sons of the third defendant herein represented by their father and next friend. The third defendant is the daughter of the second defendant. Quite a considerable time before, one Subbaroya Chettiar endowed certain properties and created a trust called 'Subbaroya Chettiar Annathana Chatram' the purposes of which are not in dispute before us. The huqdarship or trusteeship of the above chatram admittedly vested ever since its inception in two families commonly referred to as the Vadakku Chavadi family and the Therkku Chavadi family. At or about the time when the inam settlement was effected, it is claimed that one Gurunamam Chettiar on the oide of the Vadakku Chavadi and pattabiraman Chettiar on the side of the Therkku Chavadi were the two trustees representing the two branches who were in charge of the Annathana Chatram. After the death of Gurunamam Chettiar on the side of the Vadakku Chavadi family, he was succeeded by Venkatasubbaraya Chettiar and thereafter by Krishnaswamy Chettiar and then by Sethuramalingam Chettiar, the father of the first defendant. After the death of Sethuramalingam Cheittiar on 16 -12 - 1964, the first defendant is in charge of the Chathram representing the Vadakku Chavadi family. On the side of the Therkku Chavadi family, as originally stated. Pattabiraman Chettiar was the trustee. After his death, his second son Narasimhan Chettiar held the office and after him one Lakshmanan Chettiar took over on the side of the Therkku Chavadi family. Lakshmanan Chettiar had no male issues. His wife is the second defendant and his daughter is the third defendant. Lakshmanan Chettiar died on 11 -12 -1937. Prior to his death and after being assured that he would not have a male child, he executed Exhibit A -11 dated 10 -11 -1932 whereby he surrendered his right to hold the office of trusteeship of the Subbaroya Chettiar Annathana Chatram at Kurukkunthurai, Karuppanthurai village, Tirunelveli Taluk. Certain revealing facts are noticeable in Exhibit A -11. Lakshmanan Chettiar while executing the deed of surrender, as it is called, stated in uncanny terms that it was never the practice for a female member on either side of the two families to hold office of trusteeship and that was the manner and mode in which the office of trusteeship was held ever since it was dedicated by Subbaroya Chettiar and as there were no male heirs who could take over the administration and hold office as co -trustees with the member representing the Vadakku Chavadi family. Lakshmanan Chettiar executed the deed of surrender whereby he surrendered his right to hold office for ever in favour of the then co -trustee Sethuramalingam Chettiar who was representing the Vadakku Chavadi line. The plaintiffs' claim however is that the said Lakshmanan Chettiar had no right to effectuate such a surrender and give up the right to hold office of trusteeship on the Therkku Chavadi line and thus ignoring the said surrender deed. Exhibit A -11, the plaintiffs would contend that Lakshmanan Chettiar could not give up the right of trusteeship which belongs to the Therkku Chavadi family and therefore as heirs of Lakshmanan Chettiar to wit as the daughter's sons they would be entitled to hold office of trusteeship jointly along with the first defendant representing the Vadakku Chavadi line and that in order to accelerate the right of the plaintiffs to seek for and hold such office of trusteeship, the second defendant (their mother) had surrendered her right in favour of her daughter the third defendant, and the third defendant in turn had surrendered her rights to these plaintiffs on 16 -12 -1966 and that the plaintiffs are therefore entitled to be the joint huqdars of the Annathana Chatram along with the first defendant who by then became the sole trustees in consequence of the deed of surrender, Exhibit A -11, dated 10 -11 -1932 and as heir of Sethuramalinga Chettiar. The plaintiffs therefore came to Court for a declaration that they are entitled to be joint huqdars with the first defendant in elections to the trust called Subbaroya Chettiar Annathana Chatram and prayed for consequential reliefs.

(2.) THE first defendant in his written statement pleaded that the plaintiffs have no right at all to lay the present action and that the suit claim is barred by time. Relying upon the deed of surrender or settlement, Exhibit A -11 dated 10 -11 -1932, the first defendant would claim that the Therkku Chavadi branch relinquished their right to hold office of trusteeship and that it was done in the best interest of the management of the trust and as such a situation was inescapable since the female member could ever be in management of the trust in accordance with the usage and custom prevailing in the matter of the governance of the charity. The first defendant specifically pleaded that in any event his father Sethuramalingam Chettiar and thereafter himself were exclusively, continuously and publicly, to the knowledge of the second and third defendants and the plaintiffs, were adversely in possession of the office and therefore the present claim of the plaintiffs is barred by limitation. No doubt the second and third defendants sail along with the plaintiffs and would admit their claim.

(3.) THE learned trial Judge held that the suit trust was not managed by the rule of primogeniture either by usage and customs as contended by the first defendant but on issues 2 to 4 he was of the view that the second defendant did not act as joint trustee with Sethuramalingam Chettiar at any time, and that the surrender said to have been made of the rights of defendants 2 and 3 in favour of the plaintiffs as alleged in the plaint is not true and that the plaintiffs had no present cause of action to file the suit. On the issue, whether the suit is barred by time, he held that it was so and against the plaintiffs. In the result the suit was dismissed. It is as against this the plaintiff have filed the present appeal.