BALASUBRAMANIA MUDALIAR Vs. D SARAVANAN

JUDGEMENT

(1.) (Prayer: This second appeal is filed against the judgment and decree dated 6.1.94 in A.S.No.5 of 1993 on the file of the Court of the Subordinate Judge, Kancheepuram.) The unsuccessful plaintiffs in both the Courts below are the appellants herein. The suit is filed for declaration and permanent injunction against the defendant.

(2.) THE case of the plaintiffs is that the suit property belonged to one Natesa Mudaliar who by his will dated 21.7.39 has created a trust for the purpose of performing poojas from the income of the suit property after leasing it to the lessees. Out of the seven trustees, five trustees died and the plaintiffs are the only remaining two trustees. It is the case of the plaintiffs that one Arasalai Mudaliar who was the trustee, while alive, was maintaining the property and performing certain temple functions. After his death, it was nine years before, his brother Deivasigamani has continued as a trustee. He also died. Admittedly, the defendant is the son of the said Deivasigamani. THE case of the plaintiff is that after the death of the said Deivasigamani, it is only the plaintiffs as surviving trustees are entitled to maintain the trust land and therefore the defendant has no right to maintain the properties and it is on that basis the present suit for injunction is filed.

(3.) IN view of the above said factual position, as it is correctly found by the courts below, by virtue of the judgment in O.S.No.572 of 1964, wherein the plaintiffs are the parties along with the defendant's father Deivasigamani, who was declared to be a trustee based on the will executed by his father Arasalai Mudaliar marked as Ex.B4. IN these circumstances, as correctly found by both the courts below, apart from the fact that the suit for declaration against the defendant by treating the defendant as a lessee is not maintainable, the suit is certainly hit by res judicata by virtue of the earlier decision in O.S.No.572 of 1964. IN these circumstances, the contention raised by the learned counsel for the appellants that in the earlier suit only one of the appellants was a plaintiff and therefore the principle res judicata will not apply is not sustainable. It is relevant to point out at this stage that the plaintiffs themselves have not represented as individuals but as trustees, as per the original Will as stated above. Therefore the presence of the first appellant in the suit as a trustee itself is sufficient to bind the second appellant also. It is also relevant to point out that the suit itself is for a declaration as a trustee and the second appellant has no independent right as individual.