PERUMALAMMAL Vs. R GURUVAMMAL

JUDGEMENT

(1.) DEFENDANTS are the appellants, who, having lost their case before both the Courts below, have filed this appeal.

(2.) THE suit properties are situate in Melamadai Village of Sattur Taluk in Virudhunagar District. THEy were ancestral properties, belonging to one Veilmuthu THEvar. His wife was Nachiarammal and their sons were Veerappa THEvar and Shanmuga THEvar. All the said four persons created a trust with respect to the suit properties on 17.09.1946, by means of a registered deed, Ex.B2, stipulating that the creation of trust was in favour of their family deity, namely, Perumal Swamy, which is in Irukkungudi Village. One Perumal THEvar, son of Veerappa THEvar, relinquished his right in the suit properties. THE said Veerappa THEvar, in the capacity of trustee, had to spend Rs.50/- annually from the yield of the suit properties to perform Pooja etc. to the said deity. After his lifetime, the trusteeship should devolve on Shanmuga THEvar and his three daughters/plaintiffs and they were to perform the said obligation to the deity and no encumbrance was to be effected with respect to the properties and, if any made, it would be void. It was further provided that in the month of Chitrai every year, on the day of Chitra Pournami, abishekham and poojas should be performed. After the death of Shanmuga THEvar, Veilmuthu THEvar and his wife Nachiarammal and veerappa THEvar executed another registered trust deed Ex.B1 on 19.12.1950, stating that since they were attaining old age, they nominate Perumal THEvar, son of Veerappa THEvar, to be the trustee, to enjoy and perform Pooja for the above said deity, without power of alienation by generation to generation. Since Perumal THEvar died in the year 1955, his only daughter Seeniammal, mother of the defendants, was holding the suit properties. As she had not performed pooja properly to the deity, veerappa THEvar laid a suit in O.S.No.33 of 1958 on the file of District Munsif Court, Sattur, for a declaration that the properties belonged to plaintiffs' family and for recovery of possession from the defendants. THE said suit was dismissed on 17.10.1958.

(3.) THE crux of the matter lies on a circumstance where the deed Ex.B-1, dated 19.12.1950, came to be executed, concedingly when the plaintiffs were very much available. In the plaint, during the year 1993, the ages of first and second plaintiffs were mentioned as 60 and 55 years respectively. Hence, at the time of execution of Ex.B-1, certainly, they might have been minors. THEy had got vested interest at the time of execution of Ex.B1 document. THE executants of Ex.B1 completely ignored the presence of three minor daughters of the deceased Shanmuga THEvar and proceeded to execute the same. Now, the moot question is, whether they can enter into another trust deed Ex.B1, without validly setting aside the deed of trust Ex.B2, dated 17.09.1946.