V K SRINIVASACHARIAR Vs. K RAMANUJAM

JUDGEMENT

(1.) The plaintiff in O.S. No.52 of 1977, Sub-Court of Ramnad at Madurai is the appellant in this appeal, which is confined to item No.5 of the B schedule properties. The appellant and the first respondent are brothers and are sons of one Kuppanna Iyengar. The fifth respondent is the widow of Kuppanna Iyengar, while respondents 2 to 4 are the daughters of Kuppanna lyengar and sisters of the appellant and the first respondent. Having regard to the very narrow scope of the appeal, it would suffice to notice the facts necessary to resolve the controversy regarding item 5 of the B schedule properties. This item or property comprises of two small extents of wet lands of 35 cents and 36 cents respectively totalling to 71 cents in Malli village, Srivilliputtur, Ramnad Dist. One Kothai Ammal had purchased these two items under a sale deed dated 17-4-1950. Every year on every day in the Tamil month of Margachi, she had been performing Thirupalliezhuchi service in Thiruvengadamudayan temple in South Mada St. Srivilliputtur, and had been distributing cooked rice on those days early in the morning. On 25-8-1950, she executed a Will in respect of her properties. With reference to item 5 of the B schedule (first schedule in the Will), she made a provision as under - According to the case of the appellant, his father Kuppana lyengar was managing the property bequeathed under the will of Kothai Ammal and it was trust property as well, that on the death of Kuppanna lyengar, he and the first respondent alone succeeded as trustees on account of the peculiar religious duties and that respondents 2 to 5 did not have any right in the B schedule properties including item 5 thereof. Even so, the appellant prayed for partition and separate possession of his half share in the B schedule properties. This claim of the appellant was disputed by the first respondent on the ground that item 5 of the B schedule properties belonged to the family absolutely and that the appellant and all the respondents are entitled to get their due share in that item. This stand was also adopted by the third respondent herein.

(2.) Dealing with the question of the availability of item 5 of the B schedule properties, for partition, the Court below, on a construction of the terms of the will of Kothai Ammal, held that that item was available for partition as it was not trust property in the strict sense of the term. Accordingly, the appellant was granted a one-sixth share in item 5 of the B schedule subject to the performance of the obligations imposed upon the property. It is the correctness of this that is questioned by the appellant in this appeal.

(3.) The contention of the learned counsel for the appellant is that under the terms of the Will executed by Kothai Ammal on 25-8-1950, she had dedicated item 5 of the B schedule for purposes of a trust for the performance of certain services and charities and, therefore, that item cannot be subjected to any division at all. In this connection, the learned counsel drew attention to the recitals in the Will of Kothai Ammal. On the other hand, the learned counsel for the first respondent pointed out that on a proper reading and construction of the terms of the Will of Kothai Ammal, it was clear that though she wanted to secure an uninterrupted continuity in the performance of the service and charity in the temple, yet, she had purported to create only a charge over the properties and, therefore, the property could be divided and disposed of subject to the performance of the obligations imposed thereon.