SIVANESAN CHETTIAR Vs. SIVALOCHANAI AMMAL

JUDGEMENT

(1.) THIS appeal has been preferred against the decree and judgment in A. S. No. 30 of 1995 on the file of the Court of Subordinate Judge, Tiruvannamalai. The unsuccessful first defendant before the courts below is the appellant herein.

(2.) THE short facts in the plaint relevant for the purpose of deciding this appeal sans irrelevant particulars are as follows:-

(3.) THE first defendant has filed a written statement contending as follows:-As per the terms of the partition deed entered into between Appadurai Chettiar and his sons Thukka Chettiar, 'd' schedule properties were exclusively left of charitable purposes and it has been further observed in the said partition deed that the male descendants shall perform the charity from out of the income derived from the said 'd' schedule property and that the excess amount derived from 'd' schedule property will be equally partitioned among the male descendants. The said Appadurai Chettiar had 4 sons viz. Thukka Chettiar, Kullandai Chettiar, Venugopal Chettiar, Thiyagarajan Chettiar. Thukka Chettiar's sons are Rajamani and the first defenndant. Rajamani had relinquished his right in respect of the family properties. Kullandai Chettiar had no male descendants. After the death of Thukka Chettiar, the first defendant was performing the charity works from out of the income derived from 'd' schedule property. Thiyagarajan had trespassed into the suit property and was enjoying the entire income from the said 'd' schedule property. But he has failed to perform the charity hence the first defendant filed O. S. No. 262/78 against the Thiyagarajan Chettiar, Venugopal Chettiar and Rajamani Chettiar for a declaration that he is to be declared as a trustee to perform the charities as per the recitals in the partition deed and also asked for measne profits and also for rendition of accounts from the year 1965 and also for directing the defendants to repay the amount spent by him from 1965 for performing the charity. The said suit was decreed in favour of the plaintiffs as prayed for. The plaintiffs are not the parties to the said suit. The said suit is now pending in appeal before the High Court of judicature at Madras. The plaintiffs even though are not parties to the said suit, they are aware of the pendency of the said suit before the trial court as well as before the High Court. But the plaintiffs have not taken any steps to get themselves impleaded in the suit in O. S. No. 262/78 before the trial Court or before the appellate Court. The plaintiffs know well that as per the terms of the partition deed only the male descendants are entitled to administer 'd' schedule property to the earlier partition deed. Kalandai Chettiar died in the year 1963 when Thukka Chettiar was alive. The plaintiffs have not claimed any share in the income from the 'd' schedule property as the Legal Representatives of Kulandai Chettiar and no share was allotted to them while Thukka Chettiar was alive. Thiyagarajan has not been given any share in the 'd' schedule property. As per the terms of the partition deed the plaintiffs are not entitled to claim any share in 'd' schedule property. As per the document executed by 3rd defendant in favour of 1st defendant, the 1st defendant alone is entitled to conduct the shops belonging to the charitable trust. The 3rd defendant has already relinquished his right in respect of 'd' schedule property in favour of the 1st defendant. Hence, the plaintiffs are not entitled to claim any share in the income derived from 'd' schedule property. For the suit notice, the 1st defendant has sent proper reply. Plaintiffs are not entitled to claim any mesne profits. The claim of the plaintiffs is barred by adverse possession and also by ouster. Hence, the suit is liable to be dismissed.