RAMAKRISHNA MUTT Vs. M MAHESWARAN

JUDGEMENT

(1.) AGGRIEVED by the judgment and decree dated 19.6.2003 passed in A.S. No. 184 of 2001 by the 5th Additional Judge, City Civil Court, Chennai, confirming the judgment and decree dated 29.9.2000 passed in O.S. No. 2221 of 1997 by the 16th Assistant Judge, City Civil Court, Chennai, the plaintiff has come forward with this second appeal.

(2.) THE facts leading to the filing of this sec"ond appeal are as follows: (a) THE suit and other properties were origi"nally owned by one Kannabiran Pillai, who is the father of the first defendant and grandfa"ther of the second and third defendants. (b) Some of the properties purchased by the said Kannabiran Pillai were endowed to the plaintiff Sri Ramakrishna Mutt absolutely by way of settlement deeds to perform Puja and Sera in the Mutt reserving life interest for him and his second wife Smt. Kumudammal. THE Senior Kannabiran Pillai died on 31.12.1956 and after his death, his second wife Smt. Kumudammal was in possession and enjoy"ment of the suit property by way of collecting rents from the tenants. During her lifetime, she inducted her second step-son K. Narayanasamy Pillai into the suit property as a tenant on a monthly rent of Rs. 100/-. In the year 1968, the said K. Narayanasamy Pillai became sick and the first defendant was permitted to look after him and after his demise in the year 1970, the first defendant was allowed to remain in pos'session of the suit properly as Licencee. THE plaintiff also understands that even during the lifetime of the said Kumudammal, the leave and licence granted to the first defendant was revoked. THEreafter, as the said KumudammaI died on 18.3.1989, the plaintiff became the ab'solute owner of the suit property. However, taking advantage of the permissive occupation of the suit property, the defendants are squat"ting on the suit property without paying any licence fee or any amount by way of damages, for use and occupation of the middle portion consisting of about 700 sq.ft., in the main building and a garage measuring about 150 sq.ft., and the area appurtenant to it as de-scribed in the plaint schedule, to the plaintiff. Though the other tenants, namely. Rajasekaran and K. Kittu have attorned tenan"cies in favour of the plaintiff, since the defen"dants did not incline to attorn tenancy in favour of the plaintiff or surrender possession of the suit property, the plaintiff revoked the leave and licence granted by the said Kumudammal on 10.6.1989. (c) Meanwhile, in the year 1976 at the insti"gation of the first defendant, the third defen"dant filed a suit in C.S. No. 261 of 1984, which is pending on the file of this Court, against Sri Ramakrishna Mission Society, Kumudammal (since deceased), K. Mohanakrishnan, and M. Maheswaran for partition and separate posses'sion of the suit properties under the pretext that the suit properties were joint family properties and therefore, the said Kannabiran Pillai had no right to settle them to anybody. THE first de"fendant, Sri Ramakrishna Mission Society filed its written statement stating that the sec"ond item of the property referred to as Schedule was settled only in favour of Sri Ramakrishna Mutt and not in favour of Sri Ramakrishna Mission Society and thereafter, the plaintiff herein filed an application for impleading the Mutt as 5th defendant in the said suit. (d) Since the defendants did not attorn ten"ancy in favour of the plaintiff or surrender pos'session of the suit property and there is no other go the plaintiff has filed the above said suit in C.S. No. 755 of 1990 for the following relief's: (1) To direct the defendants 1 to 3 to deliver vacant possession to the plaintiff Sri Ramakrishna Mutt of the suit property more particularly described in the plaint 'B' sched"ule. (2) To direct the defendants to pay damages for use and occupation of the suit property at Rs.1200/- per month, in all about Rs.3600/- from 11.6.1999 to 10.9.1989 and future damages for unauthorised use and occupation at Rs.1200/- per month from the date of the plaint to the date of delivery of possession and for costs. (3) On the basis of the oral and documen"tary evidence, the trial Court dismissed the suit and the appeal filed by the plaintiff was dis"missed by the first appellate Court. Hence, the present second appeal by the plaintiff.

(3.) THE learned senior counsel Mr. T.R. Mani would vehemently contend on the sub'stantial question of law that whether, on a proper construction of the settlement deeds, the restricted interest reserved for the second wife of the Settlor will enlarge into an absolute estate so as to obliterate the vested right of the plaintiff/Settlee.