MANNAR KOIL SRI SOMASUNDARAR AND NITHIYAKALYANI AMMAN DEVASTHANAM THROUGH ITS TRUSTEE SUBRAMANIAN CHETTIAR Vs. AVUDIAPPA MOOPANAR

JUDGEMENT

(1.) The plaintiff Devastanam, represented by its general trustee, which failed in both the Courts below, is the appellant. The suit was filed for recovery of possession of 61 cents of wet land comprised in Survey No. 245/4 of Thiruvalleesvaram village in Ambasamudram taluk, together with mesne profits. The appellant's case was that the suit property was dedicated for the performance of certain kattalal in the appellant temple by one Muthuswami Chettiar under his Will, Ex. A -3 dated 21st February, 1926 and that the property had been alienated by the trustee appointed under that Will, by Ex. B -1 dated 9th May, 1949 to his own sister, Mahalakshmi without reference to Ex. A -3, but however, undertaking to perform the charities from his other properties. The charity mentioned in the Will, Ex. A -3, is the performance of Thiruppalli Ezhuchi for thirty days in the month of Margazhi and Abhisheka -nivedana -dharmans on one of those days to the extent of Rs. 30/ -, after paying the kist for the property from its income. The appellant's case was that the charity was being performed until 1963 and that the trustee, who had been appointed as the general trustee by the H.R. and C.E. Department under Ex. A -1 dated 27th March, 1966, made enquiries and came to know about the alienation under Ex. B -1, had sold the suit property to one Palavesa Mooppanar, the brother -in -law of the respondent herein, under Ex. B -2 dated 24th June 1957 and Palavesa Mooppanar has sold the property to the respondent subsequently under Ex. B -3 dated 21st December, 1960. The appellant's case was that there was an outright dedication of the property in favour of the kattalal and that the alienation was unlawful. The defence was that there was no outright dedication, but only a charge had been created for the performance of the kattalal and that the appellant was not entitled to recover possession of the property. The respondent further raised the plea of limitation and contended that the suit was barred. Both the courts below held that there was no outright dedication, but only a partial dedication and only a charge had been created on the property for the performance of the kattalal and that the appellant was not entitled to mesne profits. The trial court held that the suit was barred by limitation, but the appellate court held that it was not barred having regard to Art. 92 of the Limitation Act of 1963. Both the Courts dismissed the salt. The lower appellate Court had observed that it is open to the appellant to enforce the charge in separate proceedings.

(2.) The points that arias for consideration now are:

(3.) Relying upon the evidence of the respondent examined as D.W.1 that the income was about Rs. 40/ - and that the kist was Rs. 9.50 per annum, the learned counsel for the appellant submitted that the income mentioned by him was as in 1926 and that at the charity was to be performed to the extent of Rs. 30/ - out of the income and the kist was Rs. 9.50 it would follow that the dedication was an outright one. In this connection, he sought to rely upon three decision. The first of those decisions is that of a Bench of this Court in Jainambukanni Ammal v/s. Ruthrapathy Pillai, 1946 -I -M.L.J. 181 ;, 59 L.W. 185 where it has been observed thus: